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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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o 


>MPLETE    COLLEOTION 


OF 


'     •     « 


State 


AKD  \ 


^GS   FOR   HIGH  TREASON   AND  OTHER 
CRIMES  AND  MISDEMEANORS 


FSOM  THB 


VRLIEST  PERIOD  TO  THE  PRESENT  TIME, 


J^OTES  AKD  OTHER   ILLUSTBATIOJ^S 

COMPILED  BY 

B.   HOWELL,  Esq.  F.R.S.  F.S.A. 


VOL.  XVII. 

A.D.  1726—1743. 


LONDON: 

rTEI>    BY  T.  C.  HANSARD,  PETERBOROUGH-COURT,  FLEET-STREET  s 

MAM.  H VBST,  REE8,  ORME,  &  BROWN;  J.  RICHARDSON;  BLACK, 
V,  8c  CO.;  E.  JEFFERY;  J.  HATCHARD ;  E.  LLOYD;  E.  BUDD  ; 
J1.I>ER  ;  J-  BOOKER  ;  CRADOCK  &  JOY ;  R.  U.  EVANS ;  J.  BOOTH  ; 
r.  C-  HANSARD. 

1813. 


<f 


•  •       • 


•  •••  «.« 


•  •  .   •     •    • 
•   ■    •       •  • 

•  •         •  •  •  • 


•  •  •  *  a  ■  •  ' 


*      •   •      • 


^.^A 


TABLE   OF  CONTENTS 


TO 

VOLUME  XVII. 


*0*    The  new  Artidei  are  marked  [N.] 


REIGN  OF  KING  GEORGE  THE  FIRST. 

Page 
407.  The  Itial  of  JOHN  GRAHAM,    ALEXANDER  CRAW. 
FOORD,  and  WILLIAM  HOGG,  for  drinkiDg  the  Pretender't 
Healtby  a«d.  1715.    Now  first  printed  from  the  Records  of  Jus* 
tidaiy  at  Edinbwi^  [N.]    1 


46B.  Hie  TMal  of  Mm^  JOHN  ONEBY,  at  thm  Seselons-House  in  the 

Old-Bailqr,  lor  the  Murder  of  Wm.  Gower,  esq.  a.  d.  1726  90 


* 


REIGN  OF  KING  GEORGE  THE  SECOND. 

469.  The  Trial  of  JAMES  CARNEGIE,  of  Finhaven,  before  the  Courif 

of  Justiciary  (in  Scotland),  held  at  Edinburgh,  July  25,  for  the 
Murder  of  Charles  Earl  of  Strathmore,  a.  p.  1728     ..rb 74 

470.  The  Case  of  EDMUND  CURL,  Bookseller,  in  the  King's-Bench, 

for  publishing  a  Libel,  a.  p.  1727 • •••• .^t. ...•••     154 

471.  The  Trial  of  WILLIAM  HALES,  for  forging  a  Promissory  Note 

for  G,40tf.  in  the  Name  of  Thomas  Gibson,  esq.  and  Partners, 
and  for  poblishmg  the  same  as  a  true  one,  knowing  it  to  be  false 
and  counterfeit,  a.  d.  1728 162 

472.  The  Trial  of  Mr.  WILLIAM  HALES,  at  the  Scssions-House  in 
the  Old-Bailey,  for  Misdemeanors,  in  forging  several  Notes  and 
lodoraementt  in  the  Name  of  Samuel  Edwards,  esq.  and  publish- 
ing the  aamey  knowing  them  to  be  forged,  a.  p.  1729 210 


TABLE  OP  CONIXMTS. 

Page 
The  Trial  itf  WILLIAM  ACTOK,   Deputy-Keeper  ml  H««d 

Timikty  of  the  Manhalset  Prken  m  Southwark,  for  the  Murder 

of  ThoiDis  Blitty  late  a  Pirisoiier  in  the  said  Prison,  at  the  Asrizes 

held  at  Kingston-upon-Thames,  for  the  County  of  Surrey,  Aug. 

1,  A.D.I7S9 469 


B  The  Trial  of  WILLIAM  ACTON,  for  the  Murder  of  John  Brbm- 

fiekl,  at  King8ton*upon-Tliames,  in  Surrey,  August  2,  a.  d.  1729    511 


I 


H.  The  Trial  of  WILLIAM  ACTON,  for  the  Murder  of  Robert  New- 
ton,  at  the  Assizes  h'dd  atKbgatcm-upon-Thames,  for  the  County 
of  Surrey,  Augusts,  a.d.  1729 • 506 

BS.  The  Trial  of  WILLIAM  ACTON,  for  the  Murder  of  James 
Thompson,  at  the  Assizes  held  at  Kingston-upon-Thames^  in 
Surrey,  August  2,  a.  d.  1729. .•••...    546 

ft  %?eral  IVoeeedingcr  relaiidg  to  the  baiHng  Mr.  B AMBRID6E,  both 
at  the  King's-Beneh,  and  at  the  Sessions-House,  in  the  Old-Bailey, 
previous  to  his  Trial  for  Felony,  a.d.  1729 •••.•••    563 

IS7.   The  Trial  of  THOMAS  BAMBRIDGE,  esq.  for  Felony,  a.  d. 

1729 582 

Ke.  Minutes  of  the  Proceedings  of  the  Committee,  appointed  to  enquire 
into  the  State  of  the  Gaols  of  this  Kingdom,  touching  a  Charge 
against  Sir  ROBERT  EYRE,  knt.  Lord  Chief  Justice  of  his 
Majesty's  Court  of  Common  Pleas,  for  personally  visiting  Thomas 
Bambridge,  late  Warden  of  the  Fleet,  whilst  he  was  a  Prisoner  in 
Newgate,  under  a  Commitment  of  the  House  of  Commons,  &c.  &c. 
A.D.  1730 619 

Ml  The  Trial  of  Mr.  RICHARD  FRANKLIN,  for  printing  and  pub- 
lishing  **  A  Letter  from  the  Hague,'*  in  the  Country  Journal,  or 
CrafUman,  of  Saturday,  the  2d  of  January,  1731,  at  the  Sittings 
of  the  Court  of  King's«Bench,  at  Westminster,  on  Friday,  Dec  3, 
A.D.  1731 620 

ft  The  Trial  of  Mr.  JOHN  PETER  ZENGER,  of  New- York,  Printer, 
ior  printing  and  publishing  a  Libel  against  the  Government,  at 
New-York,  on  August  ^ih^  a.  d.  1735 675 


TABLE  OF  CONTENTS. 

Page 
491.    The  Trial  of  JOHN  OUPHANT  and  others,  for  drinldng  to  the 

Health  of  the  Pretender,  and  curring  the  King,  a.d«  1715.  [Now 

first  published  from  the  lUcordsofJustidary  at  Edinburgh.]  [N.]    763 

499.  The  Trial  of  Mr.  GEORGE  ROBERTSON,  Minister,  for  neglect- 
iDg  to  pray  for  the  King,  a.  d.  1715.  [Now  first  published  from 
the  Records  of  Justiciary  at  Edinburgh.]  [N.] 788 

493.  The  Trial  of  ALEXANDER  STEWART,  for  maintaining  the  Title 

of  the  Pretender,  a.  n.  1715.  [Now  first  published  from  the  Re- 
cords of  Justiciary  at  Edinburgh.]  [N] 791 

494.  The  Trial  of  JAMES  GEDDES  and  JOHN  CRAWFOORD  ( Ser- 

vants  of  Lord  Southesk,)  for  drinking  the  Health  of  the  P^tender, 
and  cursmg  the  King,  a.  d.  1715.  [Now  first  published  from  the 
Records  of  Justidary  at  Edinburgh.]  [N.] 799 

493.  Case  of  the  KING  against  GIBBON,  a^  d.  17S4.  Upon  an  Infor* 
mation,  in  the  Nature  of  a  Quo  Warranto,  by  the  King^s  Coro- 
ner and  Attorney,  against  the  Defendant,  to  shew  by  what  Autho- 
rity he  claimed  to  be  a  Freeman  of  the  Town  and  Port  of  New- 
Romney,  at  the  Rehitk>n  of  William  Jarvis.  Triedat  Kqnt  Assizes, 
held  at  Maidstone,  the  6th  of  August,  1734     802 

4%.  Case  of  the  KING  against  RICHARD  ELLES,  a.  d.  1734.  Upon 
an  Information,  in  the  Nature  of  a  Quo  WarrantOi  by  the 
King's  Coroner  and  Attorney,  against  the  Defendant,  to  shew  by 
what  Authority  he  claims  to  be  Mayor  of  the  Town  and  Port  of 
New-Romney,  at  the  Relation  of  Benjamm  Man.  Tried  at  Kent 
Assises,  held  at  Maidstone,  the  6th  of  August,  1734   822 

i97.  Case  of  HENRY  MOORE,  Plaindfl;  against  the  Mayor,  Jurats,  and 
Commonalty  of  the  Town  and  Port  of  Hastings,  in  the  County  of 
Sussex,  Defendants,  a.  d.  1736 846 

498.  Pk-oceedings  in  the  Trial  of  Captain  JOHN  PORTEOUS,  for  Mur- 

der, A.  D.  1736 923 

499.  The  Trial  of  WILLIAM  MACLAUCHLAN,  for  Mobbing,  Mur- 

der  and  other  Crimet,  a.  d.  17S7.    [Mac  Lourin's  Aigunents 
and  DecuHMH.]  [N.] » PM 


TABLE  OF  CONTENia 

Page 
aOO.    The  Triak  of  SAMUEL  GOODERE,  esq.  MATTHEW  MA- 

HONY,  and  CHARLES  WHITE,  for  the  Murder  of  Sir  John 

Dineley  Goodere»  bart  (Brother  to  the  said  Samuel  Goodere)  on 

Board  his  Majesty's  Ship  the  Ruby,  a.  d.  1741   1003 

MI.  The  Trial  of  QHARLES  WHITE,  for  the  Murder  of  Sir  John 

Goodeie,  a.d.  i74fl.« , 1079 


JOS.  The  Trial  of  JAMES  ANNESLET  and  JOSEPH  REDDING, 
at  the  Sesttoos-House,  in  the  Old-Bailey,  for  the  Murder  of 
Tbomas  Egglestone,  a.  n.  1742 ••••••••• 1094 

m.  The  Trial  in  Ejectment  between  CAMPBELL  CRAIG,  Lessee  of 
JAMES  ANNESLET,  esq.  and  others,  Plaintiff;  and  the  Right 
Hon.  RICHARD  Earlof  ANGLESEA,  Defendant,  a.  i>.  I74S    11S0 


* 


\ 


ADVERTISEMENT. 


Mr.  Cohbett  having  disposed  of  his  IfUerest  m  this  Woik, 
the  future  Volumes  will  be  published  under  the  TUle  prefixei  b 
this  Volume ;  and  new  Titles  will  be  furnished  for  the  first  lb 
Volumes. 

*ii*  CommunicatioDB  for  the  Work  will  be  received  b}'  the  Printer. 


Lately  published,  by  the  same  Proprietors^ 

The  Thirteenth  Volume  of 

THE  PARLIAMENTARY  HISTORY  OP  ENGLAND, 

From  the  Earliest  Period  down  to  the  Year  1803. 

[Vol.  XIV.  will  be  published  in  February.'] 

Also, 
THE   PARLIAMENTARY   DEBATES, 

From  the  Year  1803  to  the  present  Time. 

The  Twenty-first,  Twentt-second,  and  Twenty-third  Voluiiiet  cf  the 
Work,  comprising  the  Debates  in  both  Houses  of  Parliament  during  the  Sesuon 
1812,  are  ready  for  delivery. 

*4,t*  Subscribers  who  may  not  have  completed  their  Sets  are  requested  to  make 
immediate  application  for  the  Volumes  wanted. 


A    COMPLETE    COLLECTION 


OF 


STATE    TRIALS, 


467.  The  Trial  of  John  Graham,  Alkxandku  Crawfoohd,  and 
William  Hoog,  for  drinking  the  Pretender's  Health: 
1  George  L  a.  d.  1715.  [Now  first  printed  from  the  Re- 
cords of  Justiciary  at  Edinburgh.] 


Cnu  JomcfARiA^  S.  D.  N.  Res^,  tenta  in 
Pneiorio  Burgi  de  EfliDbargb,  trigesimo 
primo  die  mcnsis  JaDuarij  miiJesimo  sep- 
tinjfeotesiroo  decimo  qniDto,  Per  Hono- 
nbites  «iro8,  Adam  Cockburne  of  Ormia- 
Umn  Justiciariuro  Clericum,  Dominoa 
GUbertum  £liot  de  Minto,  Jacobam  Mac- 
kenzie de  RoyitouQ  et  Gulielinuro  Calder- 
wood  de  PoUoiin,  Magistros  Jacobum 
HamihoD  de  Pancaitland  et  Davidem 
Efikiiie  de  Duo,  Commissionarios  Justi- 
ciirij  diet.  8.  D.  N.  Regis. 

Curia  legittime  afHrmata. 

IntraiC  John  Graham,  youDgfer,  of  ^ew- 
^^n:  Alexander  Crawfoord^  younger,  of  Man- 
niulmiln;  and  Mr.  William  Il^gg,  desiu^ned 
kr^  of  Edinburgh,  professor  of  pUilosophy . 

iVDICTED  and  accused  at  the  instance  of  sir 

Pivid  Dalrynnple  of  Hailes,  baronet,  his  ma- 

jf^'y's  advocate  for  his  majesty's  interest,  for 

Jniikiojjr  the  Pretender's  health,  in  manner 

mentioned  in  the  criminal  tetters  raised  against 

'h^  thereaoent.       Makeing   mention,    that 

*j»*Te,  by  the  laws  of  ScoUaml  made  before  the 

^  Dion,  particularly,  the  4th  act  of  the  first 

*J*«»oo  of  her  late  majestic  queen  Anne  of 

i'-'cfted  memory,  her  first  parliament,  intituled, 

Act  airaiost  I>easiog  Makers  and  Slanderers, 

»3'i  Che  acts  therein  recited.     And  by  the  laws 

*>f  ill  well  goTemed  nations,  leasing  makeing, 

^  the  uttering  of  sUndrous  speeches,  tending 

^  excite  sedition,  and  alienat  the  affection  of 

^  people  from  his  majesty's  person  and  go- 

vnnmeot,  or  to  sett  up  and  encourage  the  false 

^  icandalons  pretensions  of  any  person  to  the 

p^Jiidice  of  hift  majesty,  his  estate,  and  his 

JQX  lod  law  full  title  to  the  crown  of  these 

'(•Ims,  stirring  up  thereby  his  subjects  to  mis- 

IiluiHrB,  sedition,  unquietness,  and  to  cast  off 

^rdoe  cibedieace  to  bij  majestie,  to  their  evi- 

VOL  XVII. 


dent  peril,  tinsell  and  deftructioti,  are  crimes  of 
a  high  nature  and  severely  punishable.  And 
more  especially,  whereas  by  an  act  of  the  par- 
liament of  Great  Britain,  made  in  the  sixth  year 
of  the  reign  of  her  said  late  majestie  queen 
Anne,  intituled,  Av  Act  for  the  Security  of  her 
majesty's  person  and  goveniment,  and  of  the 
Snooession  to  the  crown  of  Britain  in  the  Pro- 
testant line;  It  is  amongst  other  things  en- 
acted, That  if  any  person  or  persons  shall  mali- 
ciously and  directly,  by  preaching,  teaching,  or 
advysed  speaking,  declare  maintain  and  afnrm, 
that  the  pretended  prince  of  Wales,  who  now 
stiles  himself  king  of  Great  Britain  or  king 
of  England  by  the  name  of  James  tlie 
third,  or  king  of  Scotland  by  the  name 
of  James  the  eight,  has  any  right  or  title 
to  the  crown  of  these  realms,  every  such 
person  or  persons  shall  incurr  the  danger  and 
penalty  of  Premunire  made  in  England,  in  the 
16th  year  of  the  reigne  of  Richard  the  second. 
Yet  nevertheless  it  was  of  verity,  that  the  saids 
John  Grahamc,  Alexander  Crawfurd  and  Mr. 
William  Hogg,  and  each  of  them  were  guilty 
actors  art  and  part  of  the  foresaid  crimes,  in  so 
far  as,  upon  the  15th  or  16th  days  of  the  moocth 
of  December  last  1714  years,  a  stoup  with  ale 
in  i^  or  some  other  liquor,  being  bront(lit  to 
the  street  of  Edinburgh,  near  to  the  Tron 
church  and  to  the  main  guard,  by  a  woman  to 
them,  and  a  cup  filled  up  and  delivered  to  the 
said  John  Grahame,  he  proposed  the  king's 
health,  and  one  having  aslced  what  king?  the 
said  Alexander  Crawfurd  cried  out,  Ring  James 
the  eight;  whereupon  the  said  John  Grahame 
drank  to  the  healili  of  king  James  the  eight, 
and  the  cup  being  filled  np  again  twice  to  the 
said  Alexander  Crawfurd  and  Mr.  William 
Hogg,  each  of  them  did  likewise  drink  and 
spoke  these  words,  To  the  health  of  king  James 
the  right,  and  not  contontetl  with  their  thus 
direct  open  affirming  of  tha   pretooded  and 


Aleiander  Cnwlurd  nd  Mr.  William  Hagi(i 
did  drink  tu  Ihe  bappy  mioration  of  (he  uld 
Pretender,  under  the  DBine  of  kitiK  Jamea  the 
eight ;  which  words,  Tn  llie  health  of  kln^ 
James  the  ei^ht,  aai  to  the  happy-reituratioD 
of  kinti  Jamea  the  eight,  orwonls  to  that  effect, 
thev  and  each  of  them  did  pranoonee  allaad, 
and  huzza'd  at  each  health,  daDcin^attheaame 
time,  and  haTiog  hautboyi  playiDE  te  them 
in  deniongtratioD  of  Iheir  Joy  and  afiectioD  to 
what  they  were  doing,  la  open  deBaoce  and 
GODlempt  of  the  lawi  generally  and  particu- 
larly aboTe  mentioned,  and  they  were  seized  in 
the  Tery  act,  or  iocontineDt  thereafter  beinff 
pnnued  by  Ihe  city  guard*,  and  the  atoup  and 
cup  found  iu  the  place  to  which  they  had  fled, 
■nd  wherelhey  were  taken,  and  the  aaida  John 
Gnham,  Alexander  Crawfnrd, and  Mr.  WUHam 
Hogg  were  immediately  thereafter  brought 
priaonera  into  the  guard,  £^v  all  which,  they 
and  each  of  them,  were  guilty  aclora  art  and 
part  of  the  breach  of  the  aaid  Mwi,  which,  ur 


Trial  qfJohn  Graham  and  others, 

Iktoilvation  for  his  Majeity't  Advoc 
highoeHS  interest, 


*«raict  01  an  aBiae,  oerois  idb  wrua  jiuuc* 
j^SDcral,  jutice  okrk  ud  oommiaaiouera  of 
jiiaticiary,  they  and  each  of  them  ought  to  be 

Cuniahed  with  ihe  pains  of  law.  And  particn- 
irly,  they  and  each  of  them  ought  lo  be  putt 
out  of  his  m^eaty'n  protection,  aud  eadi  ot' 
ibeir  landa,  leneracuta,  gooda,  cbaltellaor  morc- 
aUet  Ibrfaulted  to  hia  majeatie,  aud  otherwise 
punished  conibrm  to  the  aaid  iiatote  of  Pm- 
tnunire  made  in  Epslaiid  iu  the  sixleenlh  year 
of  the  reigne  of  BicnanI  the  second,  lo  the  ex- 
ample and  terror  of  others,  lo  oommitt  tha  tike 


Akxandtr  Crmfurd'i  Canfaiitin. 

The  shore  named  Alexander  CrawfunI,  nne 
of  tlic  panneU  judicially,  in  presence  uf  the 
lords  and  ssbysen,  acknowledges  and  confessea 
the  tybel),  in  so  far  ns  relates  to  him,  aud 
hnmbli  throws  himtvlf  in  the  kiiiz's  mercy. 

Sit  Subscribitur,-  Alex.  CiuwTuRn. 

Ad.  Cockburne,  1.  P.  D. 

Purttifri. — Sir  Dmvid  Dalri/mpU  of  Uailn, 
barunel,  his  niajeiit}  '•  adrocale  fur  lua  hifrhness 
interctli  sir  JunMi  SleicatI,  bis  majesty's  ro- 


llie  Lybel  being  read  and  fully  debate  uva 
*wc,  JD  presence  of  the  nid  lords,  panoells, 
and  aaaysers,  Ihe  lords  justice  clerk  and  com- 
niiniionera  of  justiciary,  ordain  both  partiea  to 
giro  ia  (heir  iabnnatiuis,  Ihe  pursuer  lo  gire 
in  hit,  betwixt  anil  Wednewlay's  night  next, 
and  Ifae  paDMltB  to  gire  ia  theirs,  betwixt  sod 
Friitsy'a  uighl  IbereaAer  in  order  to  be  re- 
conled  j  and  cootinaed  (he  dyai  of  ^e  lai^ 
cauM!  till  Hotrfay  oext  at  oyne  o'dock,  and 
entained  anysera  and  wiloenes  to  aiteod  then, 
Moll  iimlartbe  pun  of  one  biiadred  mcris. 


Villuatt  Hogg. 

The  Ktng't  Advocate  has  raised  a  L\ 
Aire  the  lords  of  justiciary  against  it 
John  Grakame  and  William  Hogtr,  I 
upon  the  fourth  act  first  session  nf  her  \i 
jestie  queen  A nne'i  parliament  in  Scolli 
tiluled.  Act  against  Leaaing  Makers  am 
derers,  and  the  acts  therein  recited,  mni 
cially  reciting  the  worda  of  the  134  act, 
meot  8th  Jamea  6lh,  aud  also  foundei 
the  late  statute  made  iu  the  parliament  o 
Britain,  iu  the  Cth  year  of  her  said  late  n 
lied,  Act  for  the  Security  of  her  m: 
person  and  gnrerDroeot,  S^.  Where 
ig*t  other  things  provided.  Thai 
>n  or  persona  ahall  maliciously  and  d 
reaching,  teaching,  or  adiysed  ap 
ir,  maintain,  and  affirm,  that  ihepr 
prince  of  Wales,  who  now  Styles  himsi 
of  Great  Britain,  or  king  of  England 
amestheSrdi  orkingofScol 
of  James  the  ath,  has  any  r 
I  of  these  realms,  erery  such 
shall  incurrthe  penalty  of  Praemunirs,  ( 
to  the  act  made  in  England  in  the 
Richard  (he  3d. 

The  L^bel  subsumes,  that  the  defem 
guilty  Ot  the  saids  crimes,  having  u; 
ISIh,  or  IGth  of  December  last,  drink 
Pretender's  heahh,  under  the  name 
James  the  8lh,  and  also  drauk  to  his 
resturalion  ;  aud  Ihe  libel  mentions, 
words  were  pronounced  loud  niih 
having  hautboys  playing,  aud  the  di 
showiti);  other  marks  of  joy,  in  upen  o 
aiiddeiyani»«f  tlie  laws  generally  m 
ticularly  above  menlioDed.  And  that 
fenders  being  surprised  in  the  act  by  1 
guards,  fled,  but  being  incontinent  pursi 
were  made  prisoners.  And  concludes 
which,  they  and  each  of  Ihem  are  ^uill 
art  and  part  of  the  breadi  of  the  said  la 
ought  to  be  punished  with  the  pains 
And  rarticularly  with  the  pains  ol'  Pne 
Tix.  To  be  putt  out  of  the  king's  ptotecl 
each  of  their  Isnda,  tenerocnli,  goods, 
or  moveables,  tbrfanllcd  to  his  majestit 
The  defender  premised  to  his  mate, 
facts  Ij  belled  being  denyed,  he  (hong 
self  bound  naverth^es*  to  declare,  Iha' 
could  be  proved,  they  amounted  to  a  ti 
imprudence,  and  mdiscietioa  very- 
worthy,  but  that  erery  act  of  imprudt 
not  amount  to  a  crime  pualaliable  by  la 
And  tberelore,  the  first  defence  waa 
defender  John  Urabame  was  in  drinl 
degree,  aa  not  to  kaow  or  ictnember 

It  waa  answered  for  th«  pmaaui  in 
place,  that  by  the  coniBoa  opinioB  of 
(he  tfuilt  of  oimiBal  tacbi  ia  iacnaaw 
qnaS^  of  dM  pcriMs  aguoit  whan 


B] 


^r  drinking  the  Pretendcr^s  Health, 


A.D.  1715. 


re 


Mmmitted,  aod  other  drcamttancei .  Therefore 

tfw  same  fact,  which  done  against  a  person  of 

Ww  condition,  would  import  but  a  small  con- 

icBiptorimpnideiicenot  punishable ;  yet  being 

Ant  aicaiDst  a  magistrate  or  person  in  dignity, 

wwild  lie  crimiDal  and  punishable.  Tlie  same 

MS  vhick  at  one  time  might  be  innocent  and 

iaofleBHTe,  am  the  drinking  of  a  health,  vet  at 

uMbv  time  may  be  criminal  and  punbnabie, 

vbcB  it  is  the  noited  badge  and  symbole  of 

fMfiirlbat  are  disaffected.    The  same  facts 

■M  would  inferr  but  a  light  dignity  in  thtf 

SMBB  sf  a  priTote  person,  when  they  come  to 

kipplyed  to  the  state  aod  ilignity  of  a  king, 

if  Ibrj  be  imprudent  and  hinme worthy,  are 

erinMsl.    But  more  particnhrly,  as  to  the  de- 

facB,  it  it  answered,  First,  That  drunkenness 

ii  BOt  araperiy  a  defbnoe  exclusive  of  the  lyhel, 

lbs  only  dfect  U  can  have  is  to  make  an  allc?ia- 

lin  sf  the  sentence  or  punbhment;  drunken- 

I  not  deny  the  crimes,  but  only  excuses 

to  lessen  the  guilt :    Ffor,  it  the  fact 

mnese  Hid  affinti  an  exemption  to  eleid 

ibe  Ifbel,  it  would  inTile  men  to  commit  crimes, 

fir  it  were  easy  for  a  man  that  is  embittered 

vi^  a^  rooted  malice  to  get  himself  drunk, 

~  '  in  that  stale  to  perpetrate  the  greater 


My,  Drunkenness  is  not  relevant  even  to 

ilsia  ao  alleviation  of  the  sentence,  for  drink- 

>if  to  excesa  is  not  only  an  imorality,  but 

is  a  crime,  and  he  that  is  drunk 

re  illicit^,'  which  certainly  can 

I  bim  a  legal  exemption,  cither 

the  lybel,  nor  for  alleviating  the  punish- 


'M 


3tfy,  The  drunkenness  has  by  the  custome 
•t  Maa  all  nations,  lieen  admittc<l  as  an  allc- 
viuMaia  cases  capital!,  that  can  take  no  place 
bar,  ferasae  of  the  acts  ly  belled  on  inflict  the 
laasfdMi.     But, 

<lbfy,  Drimkenness  is  not  relevantly  pro- 
pnifd  even  lor  alleviation,  because  it  is  then 
*bIv  relevant,  when  it  is  alled^ed  to  have  been 
^  ibst  degree,  as  to  deprive  the  defender  of  liis 
Jid^ament  and  senses.  But  the  lybel  mcntimis 
ftcts  that  exclude  the  possibility  of  that  de- 
fect, viz :  The  defender  came  with  baut- 
kyi  to  the  place,  and  drink  bciu^  brought  to 
wn,  tlie  said  John  Grahamc  called  out  The 
bi^  beahh,  Crawford  another  of  the  company, 
crvcd  out  What  king,  king  Janirs  tliR  8th  ? 
iipos  which  the  said  Grahame  and  Hogpr,  as 
vtU  as  Crawfurd,  drunk  to  the  health  of  king 
JiBMs  the  8th,  and  after  that  proceeded  to 
^ak  to  bis  happy  resluration.  And  when  the 
fttsrds  came  up,  he  had  his  senses  fresh  enough 
knin.  aod  emleavour  to  make  his  e!>cape.  If 
1^  facts  or  the  substance  of  them  be  proven, 
Hibey  are  ly  belled,  it  were  in  vain,  or  indeed 
to  lay  a  soare'for  perjury,  to  allow  the  defender 
h  pove  that  he  was  dead  or  stupid  drnnk. 
^  therefore  the  Brst  defence  ought  to  be  re- 

Aad  whereai  the  defender  excuses  his  not 
p*"iug  the  crime,  laying  the  blame  upon 
■>  kaag  drunk,  and  ha? iog  forgote ;  the  pur- 


suer cannot  hut  observe,  that  this  excuse  is  but 
an  aggravation  or  mark  of  obstinacy,  for  the 
defender  had  never  time  to  forget,  he  was  taken 
*  in  flagranti  delicto,'  and  keept  prisoner  till 
next  day  that  he  was  examined  upon  the  facts 
in  his  presence,  aflter  which  he  was  committed 
and  remained  priboner  till  he  was  indictcil. 
Where  then  was  there  time  for  him  to  forgett  ? 
He  was  certainly  sensible  of  his  guilt  whence 
fled,  he  nas  taken  in  his  flight,  and  has  still 
been  keept  in  remembrance  of  it. 

But  since  the  defender  thinks,  that  his  in- 
sulting of  the  government  may  be  evaded  or 
excused,  it  reraams  now,  that  the  lords  of  jus- 
ticiary do  convince  him  of  the  contrary,  by 
maintaining  the  vigour  of  public  discipline,  for 
indeed  otherwise  his  tryal  might  have  tliis  bad 
effect,  viz.  To  shew  how  cheap  and  easy  the  like 
offence  may  be  committed  in  time  coming, 
which  might  grow  into  more  incurable  dis- 
orders. 

The  9d  deffence  proponed  was,  that  the 
lybel  is  founded  upon  the  acts  of  parliament  of 
Scotland  against  leasing  makins^,  &c.  And  also 
upon  the  statute  of  Great  Britam  the  6th  of  the 
late  queen,  but  the  judj>;es  cannot  proceed  upon 
these  laws  joyntly,  Uf cause  the  punishments 
are  different.  And  also  because,  where  any 
new  penal  law  is  made  for  punishing  any  tact 
punishable  by  a  former  law,  the  former  law  is 
su^ierseded  eo  iptOt  and  since  a  man  cannot  be 
twice  punished  for  the  same  crime,  he  mnstbe 
punished  on  the  last. 

And  to  confirm  this  more,  it  was  urged  for 
the  defender,  that  by  the  late  act  Anno  6to 
Regime,  there  are  several  things  introduced  for 
the  benetitc  of  the  subject,  whereof  the  subject 
would  be  deprived  if  they  were  to  be  tryed  on 
the  old  acts  concerning  Icasincr  makeing.  As 
for  instance  the  new  act  requires  a  malicious 
direct  deed,  by  advised  speaking,  declaiiing, 
raaintainiiicT)  and  a!Hrmin«^.  And  it  provide:^, 
that  no  person  shall  he  prosecuted  upon  that  act 
for  any  words  spoken,  iniless  inlbrniation  he 
given  upon  outh,  wiiliin  three  days  after  the 
words  spoken,  and  the  prosciMitiou  be  within  - 
three  months  iifiersueli  inrnrmalion.  And  it  is 
agaiii St  reason,  that  upon  the  same  facts  there 
should  he  temporary  actions  and  perpetual 
actions. 

It  was  answered  for  the  pursuer.  First,  that 
he  cannot  btit  observe,  tiiat  the  crime  in  ques- 
tion tieinti^  a  contempt  of  the  kin>;V  :i>ithority 
and  title,  the  very  defence  founded  upon  the 
merciful  statutes  pasi  since  the  Revolution,  is 
an  a;7gravation  of  the  crime.  Ttiere  have  been 
times  when  the  least  offence  has  been  strained 
to  be  the  highest  treason,  or  drawn  within  the 
compass  of  severest  laws,  tlie  eon.vtant  character 
of  tyrranic.  But  now  by  God's  good  provi- 
dence we  are  under  a  •gentler  aduiinistiatrun, 
the  government  and  tlie  petqde  are  in  tiie  same 
interest,  and  the  laws  ihiiionstrate  nmlual  con- 
fidence, the  lirst  consiMjuence  of  so  happy  a 
statute. 

But  this  gentlene«-'s  of  the  laws  is  not  to  ex- 
pose them  to  elusion,  the  laws  ore  the  mora 


7J 


1  GEORGE  I. 


Trial  of  John  Graham  and  othergf 


I 


particularly  to  be  observed ,  because  the  pooish- 
inents  hare  beeu  soiUned  both  in  the  case  of 
leasing  niakin^r,  and  in  that  of  the  statute  of  the 
6th  of  the  queen,  and  Uie  same  fact  must  be  a 
more  attrocious  crime,  when  committed  a^inst 
so  ijrentle  a  government,  than  it  would  be  in  the 
statute  of  rigour  and  terrour. 

This  being  premised,  it  is  more  particularly 
answered,  that  the  defence  is  irrelevant,  ffor, 
First,  it  is  no  new  thing,  that  several  acts  of 
parliament  should  be  msuie  fcA-  restraining  one 
and  the  same  delict,  and  that  these  severu  acts 
should  be  made  the  major  proposition  of  a  lybel 
against  offenders,  a  matter  so  nottour,  that  it 
needs  no  particular  instance  to  clear  it. 

Sdly.  The  general  rules  of  law  in  tliat  case 
are  against  the  defence,  for  though  it  be  a 
maxiuie  that  *  posteriores  leges  derogant  pri- 

*  oribus,'  yet  that  is  only  wliere  the  posterior 
law  abrogates  or  is  directly  contrary  to  the 
former,  for  otherwise  a  law  made,  or  a  law  in 
possession  is  more  tioivourable  than  a  new  law- ; 
the  law  is  jealous  of  alterations,  and  admitts  of 
them  only  in  cases  of  necessity,  and  so  far  as 
the  necessity  requires.  And  therefore  the  civil 
law  has  excellently  defined,  that  prior  laws  are 
drawn  to  the  posterior,  yet  it  subjoins  the  ge- 
neral caveat,  *•  Sed  et  posteriores  leges  ad  pri- 

*  ores  pertinent  nisi  contrariee  sint.  L.  26,  27, 
'  28  ft*,  de  Legibus.'  And  very  agreeable  to  this 
and  to  the  present  case,  Hermo;;enianus  and 
Paulus  the  lawicrs  have  said, '  Cum  ex  unode- 
'  lido  plures  nascuntur  actiones,  sicut  evenit 

*  cum  arbures  furtim  esse  dicuutur  omnibus 
'  experiri  permitti  post  magnas  varietates  obti  • 

*  nuit.  L.  32  sect,  de  oblig.  6c  actQuotiens  Lex 

*  obligationem  introducit  nisi  si  nominatim  ca- 

*  verit,  ut  sola  ea  actione  utamur,  Eliam  veteres 

*  eo  nomine  actiones  comuetere  si  ex  eodem 

*  facto  duse  competant  actiones,  postea  Judicis 
<  potius  partes  esse,  ut  quo  plus  ea  sit  in  reliqua 

*  actione  id  actor  ferat.  Si  tan  turn  idem  ut 
'  minus  id  consequatur  L.  4  eod.'  And  so  the 
same  Paulus,'  Si  furtim  arbores  ccesoe  sint  et 

*  ex  Lege  Aquiliii  et  ex  duodecim  tabularum 

*  dandam  actionem  Labro  ait.    Sed  Trebatius, 

*  ita  utrainquc  dandam  ut  judex  in  |K>steriore 

*  detlucat,  id  quod  ex  prima  conseciita  sit  et  reli- 

*  qua  CFUudemuct,'  and  it  is  observable,  that  the 

*  actio  arborum  furtim  caesarum,*  and  the  ac- 
tion *  ex  len^e  Aquilia'  \t  ere  both  penal,  and  bad 
ditferciit  penalties.  That  if  the  '  Lex  Aquilia' 
f^'as  to  repair  tlie  damnage,  according  as  the 
thing  had  been  of  greatest  value  for  a  moneth 
before  tlie  thing  happened,  which  very  often 
was  much  more  than  the  real  value,  and  the 
action  *  arborum  furtim  ctesarum'  was  given 
in  ^  Duplum  deductfi  jirius  arboris  cmuD  esti- 

*  matione/  Nay,  iH'sides  these  actions,  there 
was  yet  a  further  punishment  upon  a  separate 
fundation,  '  secunuuiii  est  autem  eos  qui  ar- 

*  Iwres  et  maxime  vites  cocciderint,  etiam  tan- 

*  qiiam  latrones  puniri.  L.  2il  eod.' 

To  apply  this  to  the  present  case,  whereas 
the  defender  pretends,  that  the  former  laws 
concerned  leasing  mti king  are  supersedeil  by  the 
new  hiw,  Audo  6lo  Kegine,  if  the  said  statute 


Anno  6to  Regins  does  extend  lothe  pamshB^ 
of  the  same  facts:  ^ 

It  is  answered,  First,  that  the  defeoder'Bpil 
position  is  contrair  to  the  authority  of  theMl 
said  laws  and  reason  itself. 

3ndly.    If  the  facts  shall  be  foond^to 
within  the  statute  Anno  6to  Regine, 
cording  to  the  principles  of  the  CivillAWi 
mentioned,  the  defenders  being  puDisbed' 
form  to  the  statute  Preemunire,  there 
no  occasion  for  the  judges  lo  apply  the 
mentof  the  laws  made  against  teanog 
unless  the  circumstances  being  proven 
cious,  shall  deserve  a  further  correctioii, 
that  case  upon  tlie  fundation  of  the  lawi  i 
cited,  the  judge  is  to  proceed. 

And  Sdly.    It  was  necessary  to  foml* 
lybel  upon  both  laws,  because  the  act  flf 
6th  of  the  queen  being  a  new  statute,  iti 
easily  forseen,  the  defenders  would 
anxiously  to  alledge  that  the  facta  lyl 
not  fall  under  the  compass  of  that  stati 
indeed  they  have  done,  tho  without  aoy  i 
foundation. 

And  whereas  it  was  further  alledgal, 
the  statute  of  the  6th  of  the  queen,  oovla 
benefite  to  the  subject,  which  cannot  ba  ckHi 
by  trying  the  crime  on  the  old  statotea  agiU 
leasing  making :  " 

It  is  answered,  that  the  defender  miilakl 
for  first  as  to  the  words,  '  malidontly  t 
rectly  by  speaking,  shall  maintain,  dedart^ll 
afiirm ;'  these  contain  no  new  benefit  tolhtliri 
ject,  for  all  lawsimposing  pains  upon  any  fiMl< 
offence,  do  expressly  or  tacitly  require  MiiB 
*  deliberatum  propositum,'  and  where  th»  i 
fence  consists  in  words,  it  must  be  by  flidi 
taining,  declaring  and  affirming,  wbicb  M 
tains  denying  in  the  sense  of  the  atatnlei  i 
appears  by  the  words  that  immediately  Mill 
'  and  affirm  that  our  soveraign  lady  toe  quo 
is  not,  &c.  *and  therefore  these  words  osnli 
nothing  new* 

2dly.  As  to  the  provision,  that  no  pcnkw  tb 
be  prosecuted  but  upon  bwom  informalioa 
words  within  three  dayes  at\er  they  areipokl 
and  pn»secuted  within  three  monetbs  after  i 
formation : 

It  is  answered  (Imu)  that  the  words  of  t 
statute  are,  ^  that  none  be  prosecuted  by  veil 
of  this  act,  and  that  none  be  convicted  by  vcft 
of  this  act.' — And  therefore  indeed,  if  the  m 
suit  were  founded  upon  a  sworn  infbnDatM 
and  only  upon  that  act,  sometliing  mi^t 
said,  why  the  defender  should  not  iDCurr  1 
penalty  of  Premunire,  unless  the  sworo  infi 
mation  had  been  within  three  days,  and  1 
prosecution  within  three  months. 

But  the  case  is,  the  defender  was  takea 
Jiugranti  delicto^  brought  prisoner  in  lo  I 
guard,  where  he  was  keept  till  he  was  broii| 
before  a  magistrate,  and  there  the  wiinca 
were  bnm!y;ht  face  to  face  to  declare  tbefae 
in  order  to  the  question,  whether  he  sbouM 
set  at  liberty  or  committed.  The  facta  appoi 
iog  nottour,  as  far  as  in  that  case  was  aeo 
sary ,  in  order  to  Ibe  quealion  ot'  impriaaanni 


firimUmgike  Pretendet^s  Heahh. 


JL  D.  1715. 


[Id 


vhere  be  renwiocd  till 
ded.  If  ibe  ooannittmeDt  wai  legtl 
ihoB  If  ifd  flagranti  delicto^  then 
MM  Biol  ccrtaiDly  be  legal,  be- 
fcomautud  for  tbil  crime,  be  cid- 
end  bat  by  doe  ooune  of  law. 
Me  vf  the  statute  !■»  wbere  words 
,aad  are  not  presently  cballenged, 
(I  most  befin  by  a  sworn  loforma- 
tbree  dnyes,  for  these  kinds  of  iii- 
if  the  natnre  of  iiiinries  by  the  civil 
I  good  rsmon  the  action  ceased  if 
nbiio  injnriB.'  That  is, '  si  quis 
d  animnm  non  revoea? erit.^— The 
iks,  that  mnoiag  of  three  days, 
f  sworn  information  against  the  of- 
krse  months  without  prosecntioo,  is 
ffidence  that  the  go? emnient  passes 
lory,  so  far  as  not  to  insist  upon  the 
nemunire.  But  the  defender  being 
^roBli  deUetOj  is  not  within  the  cage 
rtsion  ;  the  ^vemment  instantly 
d  animum  injuriam,'  the  offender 
a  the  offence,  and  there  needed  no 
to  be  sworn  against  him,  but  if 
Ibe  same  fiM:t  bemg  punishable  by 
England,  as  a  misdemanour,  as  un- 
it is,  the  criminal  pursuit  tor  such 
or  still  remains,  but  must  be  prose - 
irding  to  the  laws  of  Scotland,  and 
I  can  only  be  upon  the  foundation  of 
psuist  leasing  inakiug. 
lap  then  what  concerns  the  Answer 
EMoe,  it  is  plain,  that  tbe  lybel  as  it 
d,  is  Tery  regular  and  well  founded, 
kt  laws  of  leasing  making  are  not 
Ihj  the  act  of  ibe  6ih  of  the  queen : 
wefore  it  was  necessary  to  l^^bel 
I  iki,  that  the  defender  being  tryed 
smes  of  leasing  making,  suffers  no 
ir4unage. 

ervas,  it  was  further  alledged,  that 
Iocs  only  conclude  the  pains  of  tbe 
lute. 

swered,  that  the  lybel  is  expressly 
I  tbe  acu  of  leasing  making,  and  in 
Dptioo  says,  *  it  is  of  verity,.that  the 
Niers  sre  guilty  actois  art  and  part  of 
d  crimes,'  and  after  the  narration  of 
t  of  tbe  facts,  follows  these  words  *  in 
mce  and  contempt  of  the  laiis  gene- 
particularly  above  mentioned'  and  a 
',  *  they  and  each  of  them  are  guilty 
ich  of  tbe  said  lans  which  or  any 
>f  being  found  proven,  they  ought  to 
d  with  tbe  pains  of  law.' 
reason  why  the  pains  of  Premunire 
particularly  expressed,  is  because  the 
9g  new  and  less  known,  and  referring 
i  in  the  time  of  Richard  the  2od,  It 
iita  favour  to  the  defenders  to  trans- 
r  that  statute  the  words  which  con- 
inishment.  But  from  thence  to  re-' 
ybel  to  the  case  of  tbe  statute  of  the 
i|oeen,  is  so  manifestly  against  the 
e  lybel,  that  the  defenders  must  be 
1 M  what  the  lawyer  says,  **  L.  19 


sect  ad  exhibenduro  non  oportere.  Jos  civile 
calumniari,  ueq.  verba  captari,  sed  qua  mente 
quid  dioeretur  anima  advertere  convenire." 

The  third  defence  proponed  was,  that  the 
lybel  is  founded  on  the  acts  of  leasing  malEing, 
and  the  foresaid  statute  of  the  6ih  of  tbe  late 

Jjueen.     And  Ua  fit,  that  the  facts  lybelled, 
ail  not  within  any  of  these  statutes. 

And  first,  the  ststute  Anno  Sexto  ReginsB  is 
in  these  words,  that  if  any  person  or  persons, 
shall  maliciously  and  directly  by  preaching, 
teaching  or  advysed  speaking,  declare,  main- 
tain and  affirm,  that  the  pretended  prince  of 
Wales  hath  any  right  or  title  to  tbe  crown ;  it 
is  agreed,  say  the  defenders,  that  here  is  no 
preaching  or  teaching,  tbe  question  is  as  to  ad- 
vysed speaking  *  nuda  emissio  verborum„'  and 
there  the  benignity  of  the  lawgiver,  knowing 
how  much  men  are  liable  to  escapes  without 
malice  or  premeditation ; 

8do.  How  apt  witorssesare  to  mistake  words 
or  to  forget  when  things  are  not  recently 
brou^t  to  prosecution.  Therefore  the  law 
requu^  these  qualities,  First,  that  the  words 
be  spoken  maliciously.  2ndly,  Directly.  Sdly, 
Advisedly,  and  4tbly,  That  this  may  tbe  more 
clearly  appear,  the  words  are  **  by  advysed 
speakmg,declare, maintain  and  affirm,"  declare, 
that  is,  openly  and  publicly,  maintain,  in  tbe 
sense  of  the  £n:;lisn  law,  is  by  argument  to 
defend  or  to  sup|K>rt,  affirm,  is  to  conclude  and 
plainly  to  assert,  and  all  these  must  concurr. 

Stio.  Tbe  information  must  be  given  within 
three  dayes,  and  tbe  prosecution  must  be  with- 
in three  months. 

4to.  The  case  of  advysed  speaking  is  sepa- 
rated in  the  law  from  that  of^  preaching  and 
teaching,  for  as  to  speaking,  the  information 
must  be  sworn,  and  the  pnisecution  within  the 
time  above  mentioned.  And  in  the  first  words 
*  shall  by  preaching,  teaching,  or  advysed 
speaking'  there  is  s  disjunctive  particle  (or)  to 
separate  the  case  of  speaking  from  the  former 
two,  which  confirms  also,  that  the  three  qoalities 
(declare,  maintain  and  affirm)  are  to  be  taken 
conjointly ;  ffor  the  lawgri?er  having  used  tbe 
disjunctive  particle  so  immediately  before, would 
certainly  have  repeated  it  there,  if  it  had  not 
been  intended  that  those  three  must  concurr 
joyntly. 

And  thus  the  defenders  imagining,  that  they 
have  established  the  sense  of  the  law,  for  ap* 
plication  pretend,  that  there  was  no  malicious 
speaking,  nor  is  malice  so  much  as  lybelled, 
nor  any  fact  to  qualifie  it. 

2ndo.  There  was  no  advysed  speaking ,  tbe 
defender  being  young,  came  to  the  street  in  the 
beat  of  drink,  and  uttered  the  words  lybelled. 

3tio.  There  is  no  declaring,  maintaining  or 
affirming,  what  is  lybelled  are  transient  words. 

And  as  to  the  substance  of  the  fact, 

Ist.  The  drinking  of  a  health  to  any  body  is 
forbid  by  no  law,  and  it  is  of  itself  innocent. 

2do.  The  drinking  a  health  to  the  king,  not 
adding  of  Great  Britain,  does  not  imply  tbe 
drinkmg  of  the  Pretender^s  health. 

3tio.  Tbe  drinking  to  king  James  tbe  8tbr 


•■V  a* 

?v.  i»-<«  :  •«  cv^me 

X 

;..c  >  y:«5*;i.\l  io 

.v.* 

ft 

..  a:  ^  Lzyti  the 

V   ■• 

.  ■  u»  j^  4ttiritii:if 

p«>.  -«-'  • 


f 


^    •-'*^ 


.«  • 


V, 


1.  \ 


•  ••\  « ' 


•  \ 


»     •. 


t 


It 


Tiiat  nfJuhn  Graham  and  atherjf 

that  bdoDjf  to  it ;  as  for  ioitance,  ean  the 
lertioff  ot  the  iisur|M;(l  title  adyjaedlv,  bt 
fcrentfrom  doing  it  maJiciously  ?  Or  ear 
aawrtin|r  ndvysedly  and  malicioutly  be  diSf 
from  doioflr  it  directly  ?  Can  one  inaiiitMi 
declare  what  be  does  not  alKirin. 

It  is  then  certain,  that  the  worda  of  the 
are  to  be  taken  in  this  sense,  ?iz.  The  affin 
ot'  the  title  of  the  Pretender  inferrs  the  jm 
nient  of  the  law,  and  because  this  araii 
may  be  done  by  wry  tin^  or  speaking,  bbA 
S|)eakiui^  may  be  done  by  preacbiofr,  toafll 
or  any  other  way,  whereby  in  words  th«  M' 
lion  of  tlie  ofiendm  is  plainly  aignified,  tM 
has  made  use  of  ? ariety  of  wonis,  to  nf 
one  and  the  same  criiney  for  the  crime  dMi 
consist  in  any  form  of  pronouncing  of  OM 
words ;  it  consists  in  tlie  asserting  of  tlM 
of  the  Pretender,  whicli  whoever  doea  m  w 
erer  form,  does  maliciously,  directly  amI 
vyscdiy,  declare,  maintain  and  affirm  bia  Hi 

Sdly.  Thai  the  circumNtanccs  lyhelb 
such  an  affirming,  will  apiiear  to  any  mhm$ 
aiders, 

First,  tliere  are  certain  facts  to  whicb  t 
tome  hutii  affixed  a  determined  sense,  and  tl 
is  none  whereof  the  use  and  meaning  is  ■ 
incootestediy  uudersiood,  than  thatof  drial 
healths ;  is  any  man  ao  ignorant  as  iiottoki 
that  tlie  going  to  a  publick  place  aud  drink 
the  kiii;;'8  health,  is  a  publick  acknowlnl 
ment  of  his  authority,  as  well  as  a  wish  for 
long  life  ?  Is  not  the  common  form  of  ^L 
live  the  king,"  a  formula  of  homage  km 
both  in  sacred  and  prophane  history  P  And 
any  more  than  the  drinking  of  a  health  P  JH 
do  their  homnpfe  by  sivearing  directly,  th 
that  hare  offices  by  taking  the  oaths ;  bvt 
body  of  the  people  have  no  other  way  of 
pressing  their  homage,  but  that  acclamaft 
«<  God  save  the  king ;"  it  were  fniitieaa  lohi 
more  reasons  in  a  plain  case. 

2iMy.  As  the  drinking  of  the  health  ui 
that  designation  and  stylo,  is  in  the  cont 
acceptance  an  acknowledgement  of  the  I 
tender *s  title  as  king  James,  so  the  aMan 
of  that  title  is  the  cause  of  bis  attainder ; 
title  of  king  James  the  eight,  is  one  of 
usurpations  whereof  the  act  complains, 
the  wonls  are,  *^  He  takes  the  title  oft'  k 
of  8cotland,  by  the  name  of  James  the  eigl 
and  tiierefore  the  drinking  of  a  health  to  ^ 
person  under  tliat  name  by  a  Scotsman  M 
the  street  of  Edinburq^h,  though  he  did  not 
the  words  **  of  8cotland,"  can  inijiort  notli 
else,  but  t be  drinking  to  his  pros|ierity  as  fa 
ing  that  right,  wliidi  is  directly  and  malicioi 
to  affirm  his  title. 

Sdly.    The  circuoostancet  likewise  coni 
this,  it  was  not  affirming  for  argument  si 
there  was  no  dispute  in  tlie  case,  it  was  not 
t'>.  lU  wixsWr  uiUtakcs  the  meaning  of    firming  ex  calart  iracundir^  there  wasno<|i 
i»>i  iUtM>  M*veial  wonls  of  malicious,  I  rel  nor  contradiction,  it  was  a  deed  d«-iibera 
ku(  .iJmm-^I  ^|M'aking,  maintaining,  de-     done.    The  defender  came  with  his  aco 
«mJ  .tiiiiiniiivf,  are  no  otherwise  to  be     plices  to  a  certain  place  of  tlie  street,  when 


.  »i 


v» 


w^   »wh  v  aL<^iBi  an 

.••.- « J  M  v«r«2i  firi- 

V  ..w-w-  M  in«  crown 

'^  r^at^%  Bwf  could 

v«fi  H  Sviknil,  be- 

......    -^  .(-»&k9CkML«a  and  name 

■ 'iNk  1'^  (»  king  James 

...   .  .  % -vtMi  HuiiHi»  *and  tohia 

...      wi|^«'o  M  4iti  miog  of  Ilia 

.  .  .w^  ^»i  ■  "^  KNHUrary,  it  ira- 

..    '•.-v»  ■    '  t'.tiiriider  baa  no 

...>   :*  s  .   uit  by  alawtobe 

. ..  *  ..  o  .  o.   ««aru  a  person  is 

.     .*,.tM    V   ffi^, AVI  ,^ru/iir,  that 

.  ..u    .« -^  ^H  SkV4.«nd  is  called  a 

„.v  ***»•  ,  I  »^'  ****>d  *  restoration' 

.  v%i\    .1...  I'.vuuou,  it  is  accord* 

,..v.i«^  v*    >^  >^*«  t^*  be  taken  in 

A.I  4.S  vi>t%Mr  a  crime. 

.•.0  v«|iiM*aUy  insist  upon 
uo  w«»ids  directly  afBrao- 
I.  ,1     >    i>v.viuk-r.  It  is  butan  af- 
v.«  M.  M huh  m  matter  cri- 

.    .    ■  .vi   >  \c  «usi»fr  to  this  way 

I     «i  .A*  i'v*.  .<aU  put  the  defenders 

I     t«v*.«ia  I  i>i  iiuw  cited,  **  non 

.  i\4:(>  1  ui  iuN|ue  verba  cap- 

..kv«(vi.l  I'cviviur  auiinadver- 

i.i.H'i   «*(  AiuithiT  maxim, 

,.  .1    .^....  ^.ii  ul  i.ii*it  ipitid  lex  pro- 

.vMi  «%!%•  «|ai  sAUin  verbis  leges 

>  * .  -v'i«uk«\'<iu,"  licz  'ii>, Hect.de 

I.I  ^i:t«thck  part  of  tho  law  is  so 

\  >  I  .KiUiuii  tsi  in  legem  com- 

^ii,  ««iba  Ir^isi  aui|dexus  contra 

tcknuAu'M.    lav  {wuias  incertaa 

.«.  K^Ai  %%f  (\Mitia  juris  scntentiam 

•  o  i  \%kU»\iM\\  iVsudulenter  exou- 

V     i  «\hI.  .  MUillhtti  this  was agree- 

iti.i\   t*(*  «i'i*u  in  the  act  108, 

Uui.  •«  iho  I  si,  and  others  made 

.iwM%  I'i  ilii>  Acis  of  parliament. 

.'.v  ^Mtiicubily  answered,  to  all 

•^...  I «  iiuMis  u|Kin  tbo  words  of  the 

■UU'i't, 

•(  ii.'«vi  wstt  there  n  more  plain, 
■  ■■-  ,  .l.kVi'i.  iuU\seil,  maintaiuing, 
4.1 1  AUuiiiiu<  llit>  title  of  the  Pre- 


4i> 


II' 


i.  4«  i.»  ilio  ipiality  of  the  malice, 

•  «  tvui4i  ttkihs  iiniMi,  it  is  in  law 

oiti  ihol.ici!i,aiul  is  uutby  itself  the 


,MiA  ilv.  ttiau  as  they  contain  a  de» 
k.,>o\*i  4Ai'iHhouB  fact  with  exaggentumi 


thought  fitt  to  baity  he  came  with  musick,  I 
the  BDOMui  timt  in  the  iBonung  might  con 


Jvr  itiMng  the  PrOendet**  Heabh. 


A.  D.  1715. 


tl8 


nw  words  nid  to  be  spoken  by  the 
lo  not  fkU  under  the  description  of  that 
eh  CDsctSy  That  if  any  person  shall 
■ly  and  directly,  by  advysed  speaking, 
vaintaiD  and  amrm,  that  the  pretend- 
M  if  Wales,  who  now  styles  himself 
Gnat  Britain,  or  kin^r  of  England  by  the 
f  Jasiea  the  3d,  or  king  of  Scotland  by 
m  of  James  the  8,  hath  any  right  or 
ibe  crown  of  these  realms,  shall  incurr 
tkf  of  PrBmunire.  And  the  drinking 
James  8ih's  health,  and  the  drinking 
■ppy  restoration,  is  neither  a  malicious 
d  declaration,  maintainance  or  affirma- 
■i  right  and  title  to  the  crown  of  Great 
,  and  the  lybel  does  not  bear,  that  these 
acre  maliciously  spoken,  or  that  the 
dU  thereby  declare  and  maintain  the 
id  prince  of  Wales  had  any  right. 
The  set  reqnires,  that  the  words  where- 
right  in  the  Pretender  is  affirmed,  be 
§j  wpekt.  But  the  pursuer  has  laid  no 
Mmi  in  his  ly  bel,  firom  whence  it  might 
ltd,  that  these  words  were  advysedly 
« the  ooDtrary,  the  pannel  is  brought 
aajTi  buxsain^,  dancing  on  the  streets 
t  low,  all  which  circumstances  are  in- 
■t  with  deliberate  and  advysed  speak- 
as  to  the  other  acts  against  leasing 
and  slanderers  lybelled  upon,  it  was  al- 
far  the  pannel.  That  these  acts  wera 
■ded  and  inno? ate  by  the  foresaid  sta- 
ihepariiament  of  Great  Britain,  in  con- 
sseT  the  18th  Article  of  the  treaty  of 
whereby  it  was  agreed.  That  the 
hieb  concern  publick  right,  policy  and 
{■tesmeut  (as  the  old  Scots  acts  cor- 
ds) sight  he  made  the  same  thn;ughout 
hsfe  United  Kingdome.  And  supposing 
IS  Scots  acts  were  still  in  force,  which 
veil  be  admitted  otf,  for  the  reasons 
dl  attcrwanis  be  more  fully  cx)ilaii)cd, 
'  facts  charged  upon  the  pannel,  are 
danderini;  the  king  to  his  sulijects,  nor 
fcts  to  ihe  king,  which  is  the  descrip* 
r  law  gives  (<f  leafiu;^  makin;^,  and 
y  such  slanderers  d'j  iucun-  the  peual- 
Btioned  in  these  actd. 
is  the  sum  of  the  defence,  and  therein 
Del  humbly  conceives  he  is  miicli  siip- 
by  the  great  length  to  which  tliis  argu- 
drawn,  in  the  pleadings  and  inforiua- 
B  the  other  side  in  civil  cases,  which 
all  be  comprehended  under  the  express 
of  positive  law ;  there  is  place  f(»r  in- 
5  and  conjecture,  but  it  is  the  happiness 
constitution  that  such  facts  as  are 
d  are  plainly  and  clearly  forbid  by 
notes,  and  therefore  need  little  argu- 
•  make  them  plainer.  The  law  speaks 
H^  and  if  this  is  the  case  of  our  criminal 
I  general,  it  is  more  particularly  to  he 
I,  where  the  Uw  concerns  words  said  to 
ken,  and  requires  that  such  words  be  di- 
i4  advysMlly  emitted. 
iihcr  this  fact  charged  on  the  pannel  be 
HL.  XTII.  ^ 


so  or  not,  will  appear  from  a  more  particular 
examination  of  the  answers  made  to  his  de- 
fences in  the  method  as  they  are  set  down  in 
thepnrsne^  information. 

The  pannel  then  in  the  first  place  having  al» 
ledged,  that  he  was  in  drink  the  time  when  h% 
is  said  to  have  spoke  the  words  labelled ;  the 
pursuer  premises  to  the  answer  a  general  ob- 
servation, that  crimes  are  aggravated  or  less- 
ned  with  respect  to  the  quality  of  the  persons 
against  whom  they  are  cumniittetl,  and  the  ob- 
servation is  certamly  just,  but  then  the  law 
upon  which  the  party  offending  is  to  be  con- 
vict, mnst  first  make  the  fact  a  crime,  and 
that  is  the  poynt  which  the  pursuer  is  to  make 
out ;  and  here  the  pannel  would  not  be  under- 
stood, as  if  he  meant  that  the  fact  charged 
against  him  was  not  an  offence,  but  what  hia 
concludes  is,  that  it  is  not  an  offence  falling 
under  the  description  of  tbe  laws  mentioned  in 
the  lybel,  and  even  though  it  were,  the  de- 
fence of  drunkenness  is  relevant  totally  to  ex* 
elude  the  lybel,  and  nota%an  alleviation  only. 

For  tho'  as  the  pursuer  observes,  drun- 
kenness does  not  take  off  the  fact,  yet  it 
takes  off  the  greatest  crimes  as  much  ais 
fnry  of  fatuity,  because  such  persons  are 
incapable  to  consent  or  to  adhibite  a  free  act  of 
the  will,  but  there  can  be  no  doubt  in  this  mat- 
ter if  the  natura  of  tbe  libel  is  consideredp 
which  is  laid  against  the  pannel  upon  a  statute 
requiring  malicious  and  advyscd  speaking. 
And  therefore  it  is,  that  our  famous  lawier  sir 
George  M'Kenzie,  in  his  observations  upon  the 
act  'i,  scss.  pari.  1st  Charles  3d,  entitled,  Act 
for  Preservation  of  his  Majestiu*s  person,  where 
the  same  \tcrds  of  pn^achingaud  malicious  and 
advysed  speaking,  wJKjrcby  a  pnrly  expressctl 
cr  declared  his  treasonable  intentions  in  the 
matters  by  that  law  forbid  is  dticlared  treason, 
Sci3's,  that  .such  as  wercdrnnh  when  tliey  spoke 
those  words,  are  not  punishable  by  this  act. 

lint  tbe  pursuer  says,  dnmkenness  is  not  re« 
Icvantly  proponed,  because  the  nannel  does  not 
alledgc  he  was  drunk  to  that  degree,  as  to  he 
deprived  o\'\\is  judij^enicnt  and  senses. 

It  is  answered,  that  the  Defence  nreds  not  be 
so  qualified,  because  the  fact  objected  oj^ainst 
him  is  malicious  and  advysed  speaking,  which 
any  degree  of  drunkenness  is  sufUcieut  to  ex- 
clude, so  as  to  save  the  defender  from  being 
convict  upon  the  laws  lybellcd  upon.  And  the 
insinuation,  that  the  paunel  coulrl  not  be  drunk, 
because  he  was  ubio  to  go  oU'  when  the  city 
guards  appeared,  is  i.ot  concluding,  unless 
the  pursuer  subsume,  that  every  party  who 
walks  is  not  drunk,  and  is  capable  of  deliberate 
I  thinking  and  speaking,  which  the  pannel  cannot 
adniitt. 

The  order  nf  the  Defence  and  pleading 
leads  the  pannel  in  the  next  place  to  take  notice 
of  the  Answer,  to  u  hat  was  objected  against 
'the  defect  of  the  ]>ursuer's  lybel,  in  so  far  as 
it  is  founded  upon  the  Brilish  statute,  w  hich 
liears  that  no  person  shall  be  prosecute  by 
vertue  of  that  act  for  any  words  s[K)ken,  unless 
the  information  of  such  words  be  giveu  upoa 

C 


15] 


1  GEORGE  L 


Trial  of  John  Graham  and  otkerif 


oountry  of  England  or  councellon  thereof, 
tendioif  to  the  remembrance  of  ancieut  grudjures, 
whereby  hatred  may  be  fof^tered,  and  misiike- 
ing  raised  between  his  majestie's  subjects  of 
this  island,  is  made  criminal  under  the  name  of 
leasing  making.  So  that  there  can  be  noUiing 
more  evident,  than  that  the  crime  of  leasing 
making  consists  in  uttering  false  and  scanda- 
lous speeches,  tending  to  stirr  up  his  majesties 
subjects  thereby,  to  mislikeing,  sedition,  un- 
quietness,  and  to  cast  off  their  due  obedience  to 
tlieir  kintr,  to  their  peril  and  tinsel. 

2dlv,  The  facts  1y belled  are  such,  for  what 
speech  or  deed  can  shew  more  contempt  to  the 
majestie  of  the  king,  or  what  can  more  endan- 
ger his  estate  than  the  publickly  owning  the 
title  of  another,  and  wishing  his  happy  restu- 
ration  ?  What  can  more  stirr  up  the  people 
against  bis  lawful  authority,  than  the  disputing 
ot  his  title?  Or  what  can  more  clearly  invite  an 
unnatural  invasion,  whereby  this  country  should 
be  made  the  scene  of  blood,  cruelty  and  vasta-  - 
tion  at  the  hands  of  people  whose  relipon  di- 
vest them  of  all  faith,  mercy  and  pity,  to  those 
whom  they  falsely  reckon  hereticks,  than  the 
publick  profession  of  a  desire  to  have  a  declared 
enemy  to  our  religion  and  our  happy  constitu- 
tion, upon  which  our  laws  and  liberties  depend, 
restored  ? 

It  scarce  deserves  mentioning  what  the  de- 
fender so  often  observed.  That  the  acts  against 
leasinc^  making  were  odious,  for  so  they  were 
indeed,  as  all  powers  in  the  hands  of  enemies, 
or  the  hands  of  a  government  engaged  by  reli- 
gion and  mistaken  principles,  against  tlie  inte- 
rest sacred  and  civil  of  the  people,  then  indeed 
the  acts  of  leasing  making  were  strained.  But 
since  the  happy  llevoTution  that  grivance 
amongst  many  others  has  been  removed. 
What  was  useful  in  the  acts  of  leasing  making, 
and  indeeil  all  that  concerns  the  present  ques- 
tion, is  preserved  by  the  act  4th  pari.  1703,  the 
bitterness  of  the  punishment  is  restrained,  and 
80  the  odioasness  of  the  law  taken  off.  Nor 
can  these  laws  be  said  to  be  old  and  obsolete, 
which  have  been  so  lately  under  the  considera- 
tion of  the  legislature  and  approven. 

To  conclude  then  in  the  words  of  the  for- 
cited  134  act  of  the  8th  pari.  Ja.  6th>  tho'  his 
majestie  continues  in  love  and  clemencie  to- 
wards all  his  good  subjects,  and  most  willingly 
seeks  the  safety  and  preservation  of  tbem  all, 
and  his  servants  in  his  name  proceed  with  the 
same  regret  against  the  guilty,  vet  seeing  the 
law  and  authority  must  be  vindicated  against 
open  insults  obstinately  justified,  there  can  be 
no  doubt  but  the  Court  will  sustain  the  lybel, 
and  find  that  the  drinking  a  health  to  king  James 
the  eight  in  the  open  streets  with  huzzas,  and 
the  drinking  of  the  said  health,  or  to  bis 
happy  resturation,  relevant  to  make  the  defen- 
ders guilty  of  the  crimes  and  according  to  laws 
libelled. 

This  debate  being  a\  to  Af  r.  Graham  for 
whom  compearance  only  was  made,  and  Mr. 
Hogg  the  other  defender  having  for  himself 
«nv«d  the  btneata  of  tlM  same  4mncei  wludi 


the   Court  allowed,  the  tiOcd  Advoc 
peated  the  same  answers. 

Sic  Subscribitur^      David  Dalbti 

February  ath^  1715. 

Information  for  John  Grahame,  m 
James  Grahame  of  Newtmm 

AGAINST 

His  Majestie*8  Advocate. 

His  Mafettie^t  AdvocatehnM been  pk 
raise  and  for  liis  higlmess  interetit,  to  iai 
criminal  process  before  the  lords  commii 
of  justiciary,  lybelling  upon  tfae*acts  of ll 
liament  of  Scotland,  made  against  I 
makers  and  slanderers ;  but  more  cs^ 
upon  the  statute  made  in  the  parlisa 
Great  Britain  in  the  6th  year  of  tbehte 
intituled,  '<  Act  for  the  Security  of  her  J 
tie's  Person  and  Government."  WbfftJ 
amongst  other  tbinirs  enacted,  That' if ai 
son  or  persons,  shall  malicioualy  and  i 
by  preaching,  teaching  or  advyscdspc 
declare,  maintain  and  amrm,  that  the  pic 
prince  of  Wales,  who  now  styles  bimici 
of  Great  Britain,  or  kinf  of  Engtend  I 
name  of  James  the  third,  or  king  of  8i 
by  the  name  of  James  the  eight,  hi 
right  or  title  to  the  crown  of  these  i 
every  such  person  shall  incurr  the  pel 
Praemunire.  And  subsuming  that  then 
guilty  of  these  crimes,  in  so  far  as  M 
to  the  health  of  king  James  the  eigk 
to  the  happy  resturation  of  the  said  I 
der,  under  the  name  of  James  the 
Which  words,  to  the  health  of  kinglH 
eight,  and  to  the  happy  resturation  d 
James  the  eight,  he  duf  pronounce  all 
huzza'd  at  each  health,  dancing  at  th 
time,  and  having  hautboys  playing.  Ai 
eluding  the  pannel  is  guilty  of  tlie  hn 
the  said  laws,  and  therefore  ought  to 
nished  with  the  pains  of  law,  aiid  partii 
that  he  ought  to  be  put  out  of  his  majeslt 
tection  and  his  lands,  tenements,  goodi 
tells,  or  otiier  moveables  Ibrfaulted. 

It  may  appear  even  from  the  lybi 
whatever  was  done  by  the  pannel  tl 
therein  mentioned,  was  the  conseqaei 
debauch  by  too  much  drinkmg,  and  node 
act  So  that  the  pannel  not  remembris 
had  passed,  denyed  the  Ivbel ;  and  in 
fence,  it  was  alledged.  That  hownvcr  I 
charged  upon  him,  was  a  very  great  li 
indecency,  yet  he  could  not  ior  il  bn  < 
u|ion  the  laws  generally  or  speciaUj  M 
in  the  libel. 

For  Imo.  As  to  the  act  ainde is  Nm 
ment  of  Great  Britain,  entitokd,-  ^MM 
Security  of  her  Miyestie'i  ppnBB.«Mi 
ment,"  tbe   necessary   wm 
cuting  any  person  np^ 
spoken,  were  not  in  lb 
been  no  infonBti* 
oath,  I0opa« 


** 


^  dHMUHg  ike  Praentla*s  Heabh. 


A.  D.  1715. 


[18 


?be  words  nid  to  be  spoken  by  the 
to  not  fidl  uodcr  the  description  of  that 
leh  enacts,  That  if  any  person  shall 
■ly  and  directly,  by  advysed  speaking^, 
vuntain  and  affirm,  that  the  pretcod- 
Hs  of  Wales,  who  now  styles  himself 
I  Gmt  Britain,  or  kin^  of  Enfi^Iand  by  the 
tf  Jioies  the  3d,  or  kmg  of  Scotland  by 
■e  of  James  the  8,  hath  any  right  or 
(ihe  crown  of  these  realms,  shall  incurr 
Mkf  of  PrsBmunire.  And  the  drinking 
I  Jtmes  Bih's  health,  and  the  drinking 
■fpy  restoration,  ii  neither  a  malicious 
net  declaration,  maintainance  or  affirma- 
fkii  right  and  title  to  the  crown  of  Great 
lyisd  the  l^hel  does  not  bear,  that  these 
vera  maliciously  spoken,  or  that  the 
I  id  thereby  declare  and  maintain  the 
M  prince  of  Wales  had  any  riffbt. 
i  Tbe  act  reqnires,  that  the  words  where- 
liifbt  in  the  Pretender  is  affirmed,  be 
rif  ipoke.  But  the  pursuer  has  laid  no 
blNB  in  hb  lybel,  from  whence  it  might 
M,  that  these  words  were  advysedly 
I  m  the  contrary,  the  pannel  is  brought 
ikiw,  huzzaing,  dancing  on  the  streets 
b  ttt,  all  which  circumstances  are  in- 
tBt  wiih  deliberate  and  advysed  speak- 

1  ■  to  the  other  acts  against  leasing 
■isd  ibnderers  ly  belled  upon,  it  was  al- 
i  ftr  the  pannel.  That  these  acts  were 
WM  and  innof  ate  by  the  foresaid  sta- 
'ikptriiaroent  of  Great  Britain,  in  con- 
Mi  «f  the  18th  Article  of  the  treaty  of 
■i  vbereby  it  was  agreed,  That  the 
'*Ucli  concern  nublick  right,  policy  and 
'  fwnoieiit  (as  the  old  Scots  acts  cer- 
7di)Bi^it  be  made  the  same  tlirciigliout 
"^Uaited  Kingdome.  And  supposing 
IfcffipDU  acts  were  still  in  I'oroe,  which 
'  'cit  be  admitted  otT,  for  the  reasons 
UH  afterwards  be  more  fully  ex|)laliied, 
^  ficts  diarged  upon  the  pannel,  are 
'|diDderin<;  tlie  king  to  his  suhjects,  nor 
^ects  to  the  king,  which  is  the  dcscrip* 
ir  law  gives  oV  leafing  making,  and 
9  lurh  slanderers  d'j  iuciirr  the  peual- 
ntionrd  in  these  acts. 
>ii  Ibe  sum  of  the  defence,  and  therein 
Hifl  bambly  conceives  he  is  much  sup- 
by  the  great  length  to  which  this  argu- 
I  drawn,  in  the  pleadings  and  informa- 
a  the  other  side  in  civil  cases,  which 
ill  be  comprehended  under  the  express 
of  positife  law  ;  there  is  place  fur  in- 
I  ind  conjecture,  but  it  is  the  happiness 
coostitutioo  that  such  facts  as  are 
fl  wn  plainlv  and  clearly  forbid  by 
Mhl  and  therrfhre  need  little  argtt-> 
I  Mt  Ihem  plainer.  The  law  incSkt 
iriUi«tfiecMt«rmir    '-' -' 


■0  or  not,  will  appear  from  a  more  particular 
examination  of  the  answers  made  to  his  de- 
fences in  the  method  as  they  are  set  down  in 
thepursne^  information. 

The  pannel  then  in  the  first  place  baring  al» 
ledged,  that  he  was  in  drink  the  time  when  ha 
is  said  to  have  spoke  the  words  labelled ;  the 
pursuer  premises  to  the  answer  a  general  ob- 
servation, that  crimes  are  aggravateil  or  less« 
ned  with  respect  to  the  quality  of  the  persona 
against  whom  they  are  cumniittetl,  and  the  ob- 
servation is  certamly  just,  but  then  the  law 
upon  which  the  party  offi:nding  is  to  be  con- 
vict, must  first  make  the  fact  a  crime,  and 
that  is  the  poynt  which  the  pursuer  is  to  make 
out ;  and  here  the  pannel  would  not  be  under* 
stood,  as  if  he  meant  that  tlie  fact  charged 
against  him  was  not  an  ofll'uce,  but  ^vhut  he 
concludes  is,  that  it  is  not  an  offence  falling 
under  the  description  of  the  laws  mentioned  in 
the  lybel,  and  even  though  it  were,  the  de- 
fence of  drunkenness  is  relevant  totally  to  ex- 
clude the  lybel,  and  nota%an  alleviation  only. 

For  tho'  as  the  pursuer  observes,  drun- 
kenness does  not  take  off  the  fact,  yet  it 
takes  off  the  greatest  crimes  as  much  as 
fury  of  fatuity,  because  such  persons  are 
incapable  to  consent  or  to  adiiibite  a  free  aet  af 
the  will,  but  there  can  be  no  doubt  in  this  mft- 
ter  if  the  nature  of  the  libel  is  conridcrcd^ 
which  is  laid  against  the  pannel  upon  a 
requiring  malicious  and  advysed  ip 
And  therefore  it  is,  that  oar  fiunous  k 
George  M*Kenzic,  in  his  observations 
act  2,  scss.  pari.  1st  Charles  3d 
for  Preservation  of  his  Majestic^s  perm  v**^ 
the  same  ucrds  of  preaching  and  malidfV'' 
advysed  speaking,  wlitirehy  a  p?rtj  ajhw*" 
or  declared  his  treasonable  intendnv  >"  ^ 
matters  by  that  law  forbid  is  dedand  m*" 
says,  that  such  as  were  dnink  vba  fb^  ^"^ 
those  words,  are  not  punishable  Hy  cliif «• 

lint  the  pursuer  says,  drunkaii^'  '* "" 
Icvautly  proponed,  because  •^  ■■"■*' '^ 
a!ledgc  he  was  drunk  to 
deprived  of  his  judgemeot 

it  is  answered,  that  tbe  ' 
so  qualified,  because 
him  is  malicious  and 
any  degree  of  dm 
elude,  80  as  to 
convict  upon  tbe 
insinuation,  that 
because  he 


int 


X  J 


le 

a 


ip. 

osi- 

^,  or 
said, 


m 


1  GEORGE  I. 


Trial  of  John  Graham  and  otheri. 


going  debile  thereniwD,    Tlicy  find  the  uiJ 

Kbtirili  oreachof  them,  thnrdriokiugtrf* king 
mes  tlie  ei(;ht  hia  health,  ordrinking  tokicg 
James  the  eight  his  hnppy  lestaratimi,  at  lite 
time  labelled,  tetmntim,  rt-IeraDt  to  infcrr  fen 
aiUtrwy  pimilbment.  And  repel]  the  defencti 
nroponed  lor  the  said  uaaDells  against  the  said 
lybet  as  mtrictnl,  and  remitt  tbe  pannells  and 
lybell  a*  fonnd  relevant  to  the  knowledge  of  an 
JJiRze. 

Sic  Subieribilur,     Ad.  Cockbdrkb.  I.  P.  D. 

Sir  DaTid  Dalrymple  of  Hailet,  hu  mqjectie'g 
•ilTOCtt  for  his  majeatie's  interest.  Judicially  re- 
BIricts  lui  lybel  and  caDclusiao  thereof  1«  an 
ai-bhruy  paoishmeoL 

Sk  &ibttribitur,  Datid  Dalryhpia 

Diet  coDlianed  till  next  day  at  9  o'clock. 
FcinMf^ll,  1T15. 

John  Grahame,  AUlander  Craa/urd,  and 
Mr.  IVilliam  Hog^,  inilicted  and  accuied  at  th-e 
iottaiice  of  bis  roajestie's  adrocaie/or  his  high- 
Ma'  interest  ut  in  diebut  pmcedenlibui. 

Sir  William  Hensies,  of  Glatdstaines. 

Oeorge  lind,  of  Georgie. 

Thomas  Faicbolm,  of  Greenhill. 

FUrick  M'Dowal,  tnercfasnt  in  Edinbur^'b. 

John  Bell,  merchant  there, 

Jehu  Thomion,  mercbaDt  in  EiUnborgh, 

John  Colqaboou,  of  Tilliebewn.  j 

John  Martiue,  of  Litlleeires. 

Alexander  Waddel  of  Holliubum. 

James  KI'Millan,  merchant  in  Edinburgh. 

Patrick  Gibson,  merchant  in  Edinburgh. 

Akxaoder  Clark,  of  Glaadarock. 

■         Priogle,  of  Symin^un. 

John  HultoD,  tueccbant  m  Edinburgh. 

John  Lesdy,  merchant  there. 


tbem  repeat  the  ivords,  but  sat  Air'  GrahM 
putthecsf  ti)  bi* head,  and  dnnkoulthedria 
Depones,  that  he  nj  no  wore  peraon*  dancii 
but  the  paoDelU,  but  that  tjiere  were  oths 
looking  on .  Cotus  tcienti*  ptiUt.  And  thia 
the  troth  aa  he  shall  answer  to  God,  and  i 
pones  he  cannot  write. 
Sic SttbKribitur,      An, Cocxbcbne,  I.  P.] 

jl/emn^cr  iror^  Bouldier  in  IhecitjgBM 
of  Edinburgh,  aged  (wcuty  Etvea  yevt,  i 
thereby,  marned,  solemnly  Eworn,  purged  m 
inteiTugate  ut  lupra.  Depones,  That  upon  d 
sixteenth  day  of  December  last,  betwixt  fti 
and  five  a'clock  in  tbe  mnrniDg,  he  did  sea  M 
Grahame  and  Hr.  Hogg,  two  of  the  paonell 
dancing  niion  tbe  street  wiih  Ur.  Craw^ 
-■    '     ■ehau  ■  ■  "" 


rhyle  I 


Her  Majestie's  Advocat  and  solicitor  for  Pro- 
bation adduced  Mr.  Crawford's  Confeaaion. 
Ac  also  adduced  the  witnesses  atler  depODrng, 

David  Smith,  indwdler  in  Edinburgh,  and 
chair-carrier  there,  aged  fourly  thrtc  .years 
or  thereby,  narried,  solemaly  Bwom,  purged 
of  malice,  nreJuJicr,  and  partial  council,  exa- 
mined and  interrogate,  depones,  That  the 
month  of  December  last,  in  a  morning  hetnixt 
four  nod  fire  a'clock,  he  did  see  tbe  psnnells 
Hr.  Grahame  and  Mr.  H<^g  by  the  street, 
dancing  to  the  hautboys,  ann  when  they  bad 
donedancing,  the  deponent  saw  a  woman  come 
out  of  a  cellar  with  a  stonp,  and  saw  Mr.  Gia- 
hame  take  the  stoup  and  a«ap,  and  fill  a  drink, 
and  heard  him  utter  tbeae  worda,  Here  is  the 
bing'a  health,  and  some  other  of  the  company 
Mked  what  king  t  But  the  deponent  cannot  tie 
poaitiveby  whom,  king  Jameslhe  eights'  imjib. 
AndbdngiiitanogmleiforiMtbeff^Hr.  Gra- 
fcuH  fli  Hr.  H<nr  pat  tbe  cap  M  tbeir  beads, 


itboys  were  iilnying,  and  did  si 
Mr' Crawford  with  a  dish  in  bis  hand,  M 
Cranfnrd  say.Tbia  is  the  kiug's  health,  and  U 
Grahame  aiuwered,  God  damn  y  tu,  what  king 
and  heard  Mr.  Crawfurd  reply,  KiogJomeaU 
eight,  and  saw  lilm  drink  the  liquor  in  tfc 
dish,  but  did  not  bear  Mr.  Grahatne  name  tl 
heahb  of  king  James  the  eight,  neither  bear 
any  of  the  pannells  name  ahcaltl)  tothehappi 
resturation  of  king  James  the  eight.  And  m 
mediately  tbe  deponent  went  away  and  left  tb 
company.  Causa  tcicnlia,  the  deponent  be 
ingupon  tbe  guard  thatnii^bl,  happened  to  b 
on  tbe  street,  and  heiird  end  suw  as  he  baa  do 
poned.  And  tliii  is  tbe  truth  as  he  shall  ut 
Hwer  to  God.  And  depones  he  cannot  wriia 
And  fnrder  depones  that  he  saw  Mr.  Graham 
have  tbe  atoup  in  his  band,  and  fill  tlie  drink 
in  tbe  dish,  which  Mr.  Crawfurd  had  in  hii 
l»nd.  Aud  this  is  also  llie  truth  as  he  sfaali 
luiBtrer  to  God. 

•Sic  Snburibitur,        Gilb.  Eliot. 

Jamet  Malcolm,  souldier  in  the  city  guards 
aged  fourty  four  years,  or  thereby,  manied,  so- 
lemnly sworn,  pucgcd  of  malice  and  prejudice, 
interrogate,  depones.  That  some  lime  in  ibl 
month  of  December  hist,  about  tour  or  fin 
a'clock  in  the  morning,  The  deponent  saw  tbi 
three  pannelti  steniling  on  tbe  high  street  ol 
lidinburgli,  near  the  Trnn,  and  the  said  psoneUi 
had  a  cbopine  stoup  snd  a  cap  amongst  tbem, 
and  the  deponent  heard  Mr.  GriLhante  thepan- 
i^et  drinkto  the  health  of  king  James  tbe  ei^ht, 
t'Ul  cannot  particularly  Icll  whether  any  ol  the 


had  uttered  Ibese  words,  he  pointed 
It  Mr.  Grahame.  Caum  tciealitr,  the  depo« 
:ieot  was  on  the  guard  tbsl  night,  nnd  was  gi^ 
ng  down  with  a  watch  coat  to  one  of  nil 
jiimotades  that  stood  centry  near  the  pUca 
.vhere  the  pannells  were.  And  this  is  the  tratk 
la  he  shall  answer  to  God. 

Sic  Subtcribilur,        3 ahem  Malcolm. 
Ja.  H'Kcnhk, 

.itiKimCBilUaw,aeiieantintbecityguuia 
aged  fifty  yean,  or  tbaraby,  Bairied,  aoMBoty 


*] 


Trial  of  Major  OnSt/m 


A.  D.  1726. 


[SO 


mn, jpvgf^  and  iDtei/vgate,  de|Km8,  that  be- 

iviit  bar  mod  fire  in  the  morDing  of  some 

ter  in   December   last,  the   deponent  was 

olM  by  a  oeolioell  in  the  flfuard  dour  to  go 

^iwato'Miliis  sc|uare,  where  there  were  some 

padcnKB  drinking  to  the  health  of  kin^  James 

the  cishi,  lod  aat  the  de[ionetit  waa  at  the  ^lard 

ter,  ae  beanl  some  perrons  crying,  To  the 

VfiU,  »*  the  iiappy  resturation,  and  immed- 

^klrfr  tbe  deponent  went  in  to  bring  out  a 

fvir'sf  the  foiurd  with  their  arms,  and  with 

itifirty  went  towanis  Milns  square,  and  the 

If  fledy  mnd  the  deponent  and  the  party 

"them,  aud  seized  the  pannclls  in  a  stair. 

Kienti^  pqtet.    And  this  is  the  truth  as 

hi  Ml  answer  to  God. 

Sk  Sutneribiiurf        Andrew  Castlelaw. 

\V.  Calderwood. 

1W  AfSTze  ordained  to  enclose  and  return 
thsicxdict  next  day  at  9  o'clock. 

February  13,1715. 

£lffBJ|* 

JUa  Crahamcj  Alexander  Craufurd^  and 
k.lTU/iaia  Hoeg, 

Ik  sud  day  the  persons  who  past  upon  the 
I^Kof  the  said  pannells  returned  their  Ver- 
ity is  presence  of  the  said  lords,  whereof  the 
Wfettom, 

Eoc^BURCH,  February  11, 17 J 5. 

1Wabo\-e  Aaayse  ha?  iuf;  inclosed,  did  choyse 
arl^iliiaoi  Meozies,  of  Glaidstaius,  to  br  their 
dasedkN-,  and  Thomas  Fairholm,  of  Grren- 
hAI,  tbeir  clerk.  And  hnring  considered  the 
i^luihe  i:istuncc  of  Mr  Oavid  I)nli-vii)|ilr, 
iUula.his  innj^stics  advocatfor  liis  liij^hness 
>*^-<  s^ainst  Jolisi  (^r.iliamr,  Alcxamier 
Lnz:jx.  lad  Mr.  Willi-.m  Ilopir.  pamielis, 
<M  Lf'Ti:  Janice  Clerk  uud  Conniiisstonri's  of 
ivjfvii.v,  their  intpiloqiiitor  thtT^'in,  and  de- 
;««J:oc)  of  tiiu  witnesses  adduced  a<rainst  the 


said  John  Grahame  and  Mr.  William  Hogg 
with  the  judicial  Confession  emitted  judiciaTly 
by  Alexander  Craufiird,  all  in  one  voice  find  it 
not  proven,  that  John  Grahame  or  Mr.  William 
Ho^rg,  pannelU,  did  drink  king  James  the  eight 
his  health,  nor  did  drink  to  kin:*:  James  the  eight 
his  happy  restoration.      And  find  the   Ivbel 

tiroren  against  Alexander  Crawfurd,  pannel,  by 
lis  judicial  Confession.     In  witness  whereof 
thir  presents  are  subscribed  by  our  said  chaa- 
cellour  and  clerk. 
Sic  Subscribitur^    W.  Menzies,  Chancellor. 

T.  Fairiiolme,  Cleric. 

After  op|>ening  and  reading  of  which  Vjerdiel 
of  Assyze,  the  Lords  Justice  Clerk  and  Com- 
missioners of  Justiciary,  in  respect  whereofp 
assoilzie  the  said  John  Grahame  and  Mr.  Wil- 
liam Hogg,  pannells,  and  dismiss  them  from 
the  barr. 

Sic  Subscribitur^     Ao.  Cockburne,  T.  P.  D. 

February  31,  1715, 

Intran' 

Alexander  Crawfurd  yoongcr,  of  Manual* 
milne. 

The  liOrds  Justice  Clerk  and  CommissioDerf 
of  Justiciary,  havincc  considered  the  Verdict  of 
Assyse  returned  upon  the  12th  day  of  Febmarr 
instant,  against  the  said  Alexander  Crawfurd, 
pannel ;  thev  in  restpecl  thereof,  by  the  month 
of  Charles  Riuross,  macer  of  court,  fy  ne  and 
amerciate  the  said  Alexander  Crawford,  in  the 
sum  of  5(;/.  sterlinsr,  to  be  payed  to  his  majes- 
tie*s  rcecivor  general  for  his  majestic's  use,  be- 
twixt and  the  1st  day  of  July  next  to  come» 
and  ordain  him  t(i  l)e  cLrriud  to  prison  until 
he  G^ive  hoiid  and  sunificnt  caution  that  hft 
shall  nir.kf!  )  ayment  of  the  said  sum  in  manner 
to r« a i d . — Sic  Su hsrribi i u r^ 

A  I).  Coi;KRi;i{N.  W.  Calderwood. 

Cxii.n.  ]-'.i.i(>T.  J.  Hamilton. 

Ja.  31*  KlNZIC.  I).  fc)RMCINE. 


*33.  The  Trial  of  Major  John  Oveby,*  at  the  Sessions-House  in 
the  Old-lJailey,  before  the  Right  Hon.  Sir  Francis  Forbes, 
kut.  Lord-Mayor  of  London,  Mr.  IJaron  Hale,  Sir  William 
Thompson,  knt.  Recorder  of  London,  and  others  his  Majesty's 
Justices,  for  the  Murder  of  Wm.  Gower,  esq. :  V>  Gkorof.  L 
A.  D.   172G. 


John  Oneby,  of  St.  Martin's  in  the  Fields, 
est.  was  iu'Jicted,  for  that  he,  oti  the  'Jnd  day 
if  Ft^rruary,  IJ  C*>o.  at  the  said  |farish,  felo- 
■hhIv,  iJluntarily,  and  ok'  his  malice  fore- 
ihsurht,  nmlc  an  ass.-nilt  upon  one  William 


,  esq.  and  that  he  the  said  John  Oneli 
*ttk  a  sword  which  lie  then  and  there  he 


*  See  «  Hum.  766.    ft  Lord  lUym.  1485.    1 

.n. 


drawn  in  his  riGflit  hand,  the  said  Willlara 
Cj'iwer  in  and  upon  the  left  part  of  his  belly, 
near  the  navel,  Icloniously,  vulniitarily,  and  oi 
his  malice  forcthonr^flit,  fhd  strike  and  thrust, 
^i?in{7  tiic  said  ^Villiam  (iouer,  then  and  there, 
with  the  said  dniwn  swonl,  in  and  upon  his 
said  left  part  of  his  helly.  near  the  navel,  a  mor- 
tal wotind  of  the  lin^tli  of  one  inch  and  a  half, 
and  of  the  depth  ol'  len  inches  ;  of  which  mor- 
tal wound  the  said  William  Goner  lived  io  » 


313 


IS  GEORGE  I. 


TruU  of  Major  Onehf, 


I 


langpiishiiig  condition,  from  the  2nd  day  of  Fe- 
bruary to  the  3rd  day  of  the  said  February ; 
on  which  3rd  day  of  February,  the  said  Wil- 
liam Gower,  at  tlie  parish  aforesaid,  of  the  said 
mortal  wound  did  die ;  and  that  the  said  John 
Oneby,  the  said  William  Gowcr  feloniously, 
▼oluntarily,  and  of  his  malice  forethought,  did 
kill  and  murder.'* 

He  was  a  second  time  hidicted,  on  the  coro- 
ner's inquisition,  for  the  said  murder. 

Thomas  Hnwkint.  On  the  2nd  of  February, 
between  nine  and  ten  at  night,  Mr.  Blunt,  the 
deceased,  the  prisoner  and  myself,  went  from 
Will's  coffee- house  to  the  Castle  tavern  in 
Dniry-laiie,  where,  in  about  half  an  hour,  Mr. 
Rich  came  to  us.  After  the  fourth  bottle,  the 
prisoner  called  for  a  box  and  dice ;  the  drawer 
said,  they  had  none  in  the  house;  "Why 
then,"  says  the  prisoner,  **  bring  the  pepper- 
box." The  drawer  brought  it,  and  dice  were 
laid  upon  the  table :  but  I  don't  know  by  whom. 
We  played  low,  nobody  setting  abo?e  half  a 
guinea,  and  yet  I  had  no  great  inclination  to 
game,  and  especially  to  set  the  prisoner ;  and 
therefore,  aAer  a  trifling  loss  I  declined  the 
play.  The  prisoner  appeared  di«|^usted  at  it, 
and  aHked  me  why  I  refused  ?  1  told  him  I 
should  use  m^  own  pleasure,  whether  it  was 
agreeable  to  his  h  umour  or  not.  The  rest  con  - 
tinued  playing.  The  deceased  lost  SOf.  Mr. 
Rich  said,  "Who  will  set  me  three  half 
crowns?"  Upon  which  the  deceased  took 
something  out  of  his  pocket,  and  laid  it  on  the 
table,  but  concealed  it  with  bis  hand,  and  said, 
"  I'll  set  ye  three  pieces ;"  and  then  taking  his 
hand  avray,  we  saw  three  half- pence.  This 
was  not  offered  to  the  prisoner ;  but  he  appear- 
ed to  be  much  affronted.  He  said,  "  That  is 
▼ery  impertinent  to  set  three  half- pence."  The 
deceased  said,  "  What  do  you  mean  by  imper- 
tinent 1*"  And  the  prisoner  replied,  "  You  are 
an  impertinent  puppy  ;"  and  presently  snatch- 
ed up  a  bottle,  and  threw  it  at  the  deceased's 
bead,  and  it  beat  some  i»owder  out  of  his  wig, 
but  did  him  no  hurt.  Ue,  in  return,  tossed  a 
glass  or  a  candlestick,  I  can't  tell  which,  at  the 
prisoner;  but  it  did  not  reach  him.  They 
both  rose  up  together,  and  went  to  their  swords, 
which  hung  up  in  the  room.  The  deceased 
being  quickest,  got  his  sword  first,  and  drew  it, 
and  stood  still  in  a  posture  of  defence,  at  a  good 
distance  from  the  prisoner,  who  was  advanc- 
ing, and  was  drawing  his  sword  to  meet  him ; 
but  Mr.  Rich  stepfied  in  between,  and  pre- 
vented him.  Then  the  deceased  threw  away 
his  sword,  and  they  all  sat  down  again,  and 
drank  for  about  half  an  hour ;  when  the  de- 
ceased offering  his  h&nd  to  the  prisoner,  said, 
"  We  have  hsM  words,  mi^or,  and  you  was  the 
aggressor;  but  let  us  agree."  The  prisoner 
answered,  "No,  damn  ye!  I'll  have  your 
Mood  I"  And  then  tummg  to  me,  he  said, 
"  Hawkins,  yoa  was  the  occasion  of  this." 
••  Why  then,^*  says  I,  "  if  ye  have  done  with 
bim,  and  have  any  thing  to  say  to  me,  I  am 
your  inaOf  and  I'll  see  yon  out.**    "  No,^  says 


be,  "  I  have  another  chap  first."  In  ala 
half  an  hour  after  this,  which  was  near  tk 
in  the  morning,  the  company  broke  op.  I  it 
out  of  the  room  first,  and  Mr.  Blunt,  and  '. 
Rich  were  next  after  me.  When  I  casBe 
the  street  it  rained,  and  I  run  under  a  p* 
house,  where  I  stood  a  little  while ;  bafc 
having  a  chair  ready,  and  seeing  none  of" 
company  come  out,  I  returned  to  the  rc3 
where  Tlound  the  deccasetl  wounded,  and  E 
ing  on  a  chnir  in  a  languishing  c^mdition. 
died  the  next  inoniiiig.  1  knew  him  intiaa 
ly,  and  I  don't  believe  that  tliere  was  a  swfl 
teniftered  man  in  the  world. 

John  Rich.  I,  the  prisoner,  the  deoea 
and  some  others,  went  together  te  see  the 
tragedy  of  Hecuba ;  we  sa^  io  the  pit. 
deceased  and  the  prisoner  appeared  to  be  ^ 
friends  all  the  time  of  the  p)ay ;  and  as  80« 
it  was  done  I  left  them  ;  but  met  them  ib 
at  the  Castle  tavern  in  about  half  an  hour, 
prisoner  and  I  called  for  a  box  and  dice ;  im 
not  being  to  be  had,  he  called  for  a  pei}pcr— 
and  it  was  brought ;  I  saw  dice  lying  upoK 
table,  but  don't  know  how  they  came  there 
said.  Let  us  play  low.  Some  words  pssK 
tween  the  prisoner  and  Mr.  Hawkins.  K 
down  three  half  crowns.  The  major  set 
I  threw.  Seven  was  the  main,  and  sis 
chance.  The  deceased  put  down  three  J 
pence  ajgfainst  me,  and  said.  Here,  I'll  sei 
three  pieces.  The  prisoner  damned  liim, 
called  him  an  impertinent  puppy.  Sir,  i 
the  deceased,  I  am  not  afraid  ot  ye,  and  be  I 
calls  me  a  puppy  is  a  scoundrel.  At  Ife 
words,  the  prisoner  threw  a  bottle  at  bia. 
brushed  his  wig  as  it  passeil,  and  he  in  lili 
tossed  a  glass.  They  both  gut  up  loffelfa 
but  the  deceased  being  nimblest,  jumped  on 
table,  and  reached  his  sw(»i  d  first ;  and  tl 
slopping  down,  he  drew,  and  stood  ready  to 
feud  himself,  but  made  no  offer  to  push, 
the  mean  time,  the  prisoner  took  down 
sword  and  cane,  which  hung  t«>gether; 
there  lieing  the  table  and  a  chair  bt-tween  th 
he  came  round  the  table,  and  was  going  to 
gage  with  tlie  deceased ;  but  I  stepped  betn 
them,  told  the  prisoner,  who  was  drawing 
sword,  if  he  made  a  longe,  it  must  be  thro 
my  body,  which,  as  I  was  unarmed,  wouh 
wdful  luunler.  The  deceased  then  threw  a 
his  sword,  and  they  lioth  sat  down  again.  ' 
deceased  put  his  hand  forward,  and  said,  Cc 
major,  let  us  be  reconciled,  words  in  beat  i 
be  forgot  and  forgiven.  The  prisoner  ans^ 
ed,  God  damn  you,  you  lie — I'll  have  i 
blood,  by  God!  And  then,  turning  to*^ 
Hawkins,  be  said.  This  is  all  along  of  ^ 
Mr.  Hawkins  answei'cd.  Then  I  am  i 
man;  and  the  prisoner  replied,  No,  1  I 
another  chap  to  deal  with  first.  When  w 
got  up  to  go,  the  prisoner  hung  his  great  i 
coat  upon  his  shoulderS|  and  I  think  butli 
it  in  one  or  two  places.  Mr.  Hawbios  i 
out  first,  Mr.  Blunt  next,  the  deceased  folk 
biui ;  I,  the  deceased,  and  tbe  prisonw  c 
last :  but  he  was  hardly  out  of  the  rosniy « 


ySr  <X*  MHrier  'tfWSBiuk  Gmtr, 


iuD.  1786. 


t» 


I  li  lh«  tocMd,  Htrk  ye^  yoaafr 
■ift  vOTi  wi*  y«^  The  deoettM 
lAt  ^mj  loth  re-cnlHcd  the  room. 
r wi wiwrtiitoly tlittt flat  IbcNml, 
|rfnwiJi^iBd»kwrfitiBp  €Q  the 
■blfWMed  Wis  mede  Irf  tbeBri- 
llnffaTeiyheftTyiDiui.  llr.Biiiiit 
■H  Mck,  and  endm?eured  to  vet  in ; 
llHiMdily  epea  the  door;  hot  the 
pnfjto  our  oMitlMice,  tre  made  eo 
Uk.  Bhmc  lliet,  and  1  deae  behind 
kprnwer  was  then  next  to  the  door, 
fcfailh  hb  aword  drawn  in  his  right 
tflBalsf  it  heinff  towards  the  deceas- 
akMd  1^  the  ahoaUer  with  his  left 
liUithedeoesard  had  then  no  aword 
ai,ailsitt  I  saw  none;  and  1  soon 
ibftsai  it  dose  to  the  wainseot,  be- 
ftUtafsfthegreatond  table.  It  was 
rifnaqr  four  or  fife  inciies  from  the 
H»  diemed  cloosd  with  the  prisoner ; 
khaauusr,  as  if  he  rather  fell  to- 
bthnngh  wcaknets,  than  otherwise^ 
IImhm  think  the  woond  was  jpvett 
pee  came  in.  We  pat  him  mtoa 
itm  far  a  smgeon.  As  I  lidd  np 
hm  part  them,  I  felt  a  littie  prielc 
ipeiatybj the priaoner'a aword;  bat 
hws  done  aoeidentally.  Mr.  Blant 
Miaw  dapped  his  hand  on  bn  bdlj. 
hi  vaidangmiisly  wounded ;  bat  I 
■t  hy  wbtt  mesne.  I  told  the  pri- 
■iws  csaae  out  of  the  room*  that  I 
i  ha  had  kUled  the  deoeaatd ;  No, 
■j^  have  done  it,  if  I  wouM ;  bat 
^fhghted  him.  But  suppose  I  had 
^  1  know  what  I  «lo  in  those  afl&irs  ; 
I  killed  him  to-night,  in  the  heat  of 
ihoald  have  had  the  law  on  my  side ; 
d  done  it  at  any  other  time,  it  would 
d  like  a  set  meetini|^,  and  not  a  ren- 
I  advised  him,  however,  to  make  off, 
the  worst.  1  asked  the  deceased  on 
lid,  if  he  received  the  wound  fairly  P 
red,  faintly,  «*  I  think  I  did— but~I 
r— what  might  have  happened— if 
ioi— come  in." 

Blunt,  From  the  play  we  went  to 
thence  to  the  Castle,  where  we  were 
f  and  triendly,  till  the  dice  were 
We  played  low,  but  Mr.  Hawkins 
led ;  upon  which  the  prisoner  said 
IThy  do  you  come  into  company, 
won't  do  aA  others  do  ?  Mr.  Uaw- 
ned.  Don't  trouble  yourself  about 
»  as  I  please.  The  deceased  set 
-pence:  the  prisoner  said  it  was 
ipertiueut;  and  some  other  words 
'  flung  a  flask  at  the  deceased,  who 
OKd  a  glass  or  a  candlestick.  They 
tworda,  but  were  prevented  from  en- 
4  so  they  sat  down  again ;  the  de- 
lod  hia  hand  to  be  reconciled,  upon 
priMoer  save  him  very  ill  language, 
m  wottlu  have  his  lAood.  As  this 
dve  that  their  quarrel  would 
IIm  nest  day,  1  invited  the 


oompany  to  dme  with  aie,la  hopcs.lo  brioff  oa 
n  recoodfiathm,  and  nrsvent  futnre  niienief. 
The  prisoner  answersd  my  ofler  with,-  No,  God 
damn  ye,  I'll  dine  with  none  of  ye.  Are  ye 
ngry,  £Kr,  says  I,  Bare  ye  any  thing  to  any 
tome r  Or  me?  says  Mr.  Hansins.  Or  ooef 
saya  Mr.  Rieh.  No^  he  had  nothhtf  to  say  to 
anyoffls.  This  was  aboat  two  or  three  in  the 
morning.  And  after  we  were  all  enme  oat  of 
the  room,  I  heard  the  prisoner  call  the  deocaied 
book ;  and  they  were  no  aooner  got  into  the 
room  agam,  but  the  door  waa  flimg  to,  with 
grsat  nolcoee,  and  I  heard  the  mshing  of 
swordsi  When  I  got  in,  which  was  with  maoh 
dlffienhy,  I  did  not  see  that  the  deeeaaed  had 
any  sword  in  lus  hand,  but  he  waa  sinking  forr 
ward ;  and  I,  by  gomg  to  assist  him,  received 
a  wound  in  my  belly,  which  I  was  afraid  wii 
mortal ;  bat  1  cannot  tril  how,  or  by  whom  it 
was  given,  though  I  tbonk  it  conld  not  be  by  th« 
deonsed,  beoa^  he  had  no  sword  ;  and  be- 
sklesy  vraa  not  in  a  eonditioii  to  do  it.  A  sor* 
geon  being  in  the  hoose,  gave  me  his  imm9- 
diate  asristanc^ 

Mr,  SAow,  the  snrgeon'.  I.  fhnnd  the  da> 
oiised  bngnishmg  in  a  chahr.  His  intestines 
nppsnred  attheweand,  and  by  being  esposed 
to  the  dr  began  to  mortify.  When  1  had 
dreised  him  1  sent  him  home ;  bat  the  neil 
day  I  foand  a  second  mntnre  of  the  mtestines. 
Hediedsoon  aUter;  and  thai  woimd  was  the 
cnnse  of  his  death. 

Prnsmr.  A  wager  was  Idd  bdwixt  Mr. 
Bioh  and  Mr.  Blunt,  concemmg  Mr.  Mills*i 
actittg  the  part  of  Caesar  m  the  day  of  Jalios 
CsBsar,  and  it  waa  kist  by  Mr.  Blunt.  After 
this  a  box  and  dice  were  called  for,  but  not  by 
me;  the  drawer  said  he  had  dice,  but  no  box ; 
upon  which  somebody  edied  for  a  pepper-box. 
1  flung  a  main  at  12i.  and  passed  it  about. 
Mr.  Hawkins  refusing,  I  said,  I  thought  there 
was  as  good  fellowship  in  a  little  play,  as  in  al- 
together drinking :  then  we  played  for  half- a- 
crown  or  Ss. ;  and  when  the  box  came  round 
again,  the  rest  likewise  refused  to  play ;  at 
last,  the  deceased  offered  to  set  three  half- 
pence, which  1  said  was  very  impertinent  He 
called  me  rascal ;  **  You  impertinent  puppy," 
says  I,  ^'  what  do  you  mean  by  that  ?"  U|)on 
which,  he  threw  a  glass  at  my  bead,  and  drew 
upon  me.  1  told  him,  be  acted  basely  in  draw* 
log  upon  me,  when  it  was  he  that  gave  the 
affront.  Afler  this  i  put  on  my  great  coat, 
and  was  croing  out.  Mr.  Hawkins  had  slipt 
away,  ana  the  rest  being  gone  out  of  the  room,* 
Uie  deceased  pushed  the  door  to,  and  drew  upon 
me,  and  wounded  roe  in  the  knee,  and  cut  my 
finffers.  I  parried  and  closed  with  him ;  he 
endeavoured  to  stab  me  in  the  back ;  at  which 
time  Mr.  Blunt  came  iu,  and  received  a  wound 
in  his  belly,  which  must  have  been  by  the  de- 
ceased's sword. 

John  Barnat  the  drawer.  I  threw  the  pri- 
soner's great  coat  over  his  shoulders,  as  he  waa 
going  out.  Mr.  Hawkins  came  out  first,  and 
asked  if  his  chair  was  at  the  door  ?  I  said,  Yes. 
Mr.  Blunt  followed,  and  I  went  down  to  unbar 

1> 


S5] 


12  GEORGE  I. 


Trial  of  Mtgar  Oneig, 


the  door ;  tbc  rest  of  4he  company  not  eomingf, 
I  weut  baokimd  met  Mr.  Riob ;  Kebkl  me  open 
the  door ;  I  thou«^t  he  meant  the  street-door, 
and  was  turnings  that  way  again ;  but  be  airore 
at  me,  and  told  me  the  other  door :  I  opened 
it,  and  went  in  6r8t,  and  the  deceaied  and  the 
prisoner  were  both  with  their  swords  m  tbeir 
tiaudH,  pointing  towards  each  other.  The  de- 
cessetl  closed  with  the  prisoner  in  a  manner  as 
if  he  was  rather  falling'  than  pushing ;  and  the 
prisoner  with  his  led  hand  bad  hold  of  the  de- 
creased, who,  as  soon  as  we  parted  them,  was 
BO  weak  that  he  could  not  stand.  I  did  not  see 
him  bleeding  when  I  came  into  the  room, 
though  I  cried  out  to  the  prisoner,  For  God's 
sake  what  are  ye  doing? 

Pritoner.  uid  not  yon  see  the  deceased 
ofier  to  stab  me  in  the -back  ?~-jBariief.  No. 

Mr.  Burdet^  a  surgeon.  The  next  day  in 
the  evening,  the  prisoner  sent  a  coach  to  my 
house  with  a  letter  for  me,  intbrming  me  that  be 
had  been  wounded  in  a  rencounter,  and  desiring 
me  to  come  to  him.  I  went,  and  found  him  in 
bed  at  the  house  of  Mrs.  Gardiner,  in  Dean- 
atreet,  near  Red-Lion-sqnare,  where  he  had 
concealed  himself.  He  had  one  wonnd  beloir 
liis  knee  an  inch  and  half  long,  another  on  his 
buttock,  two  of  his  fingers  were  cut  in  the  first 
Joint,  -and  he  shewed  me  three  or  four  holes  in 
his  breeches ;  but  none  of  his  wounds  were 
above  a  quarter  of  an  inch  deep,  and  that  in  liia 
leg  had  but  just  raised  the  skin. 

Mrs.  Ganiiuer,  The  prisoner  came  to  my 
house  about  two  o'clock  in  the  morning:  he 
was  bloo<ly ,  and  upon  searching  him,  I  foood  a 
wound  in  his  buttock  as  deep  as  my  (inger,  and 
I  dressed  it  for  him. 

Court,  The  evidence  is  |)lain,  that  the  pri- 
soner cave  the  first  provocation ;  and  it  is  not 
denied,  that  he  afterwards  killed  the  deceased. 
The  question  is,  Whether  from  the  time  the 
prisoner  threw  the  bottle^  to  the  time  the  de- 
ceased received  the  wound,  there  was  any  re- 
conciliation P  If  there  wai  nutylthink  it  can 
be  no  less  than  murder. 

The  jury  found  there  was  no  reconciliation ; 
but  not  bemg  satisfied  as  to  the  murder,  they 
agreed  npon  a  special  verdict. 

The  counsel  on  both  sides  attending,  they 
stated  the  principal  points  of  the  evidence  for 
the  consideration  of  the  judges. 

Whattlic  prisoner's  counsel  di^ewup,  was 
lo  this  efiect : 

*<  We  fiud  that  the  prisoner,  the  deceased, 
and  three  more  wet  at  the  tavern,  where  they 
all  appeared  very  irieuflly. — A  box  and  dice 
wefe  called  for, — they  played  some  time  toge- 
ther, till  Mr.  Rich  said,  W  ho  will  set  me  throe 
half-crowns?— The  deceased  put  down  three 
halfpence,  and  said,  I'll  set  ye  three  pieces.— 
The  prisoner  said^  That's  impertinent— 4he 
deceased  answered,  He  that  says  I  am  imper- 
tinent, is  a  TasGal.^rhe  prisoner  threw  a 
bottle,  and  the  decessed  threw  a  glass.— They 
both  got  op,  and  took  tbeir  swords ;  but  one  of 
the  company  stepped  in,  and  prevented  their 
tngagingw— They  tat  dvwo  agam  to  drioki— > 


about  an  boor,  and  thao  the  ^ 
broke  ap. — The  prisoner  pot  an  his  g 
—-They  all  went  out  of  tne  room. — 
soner  and  the  deceased  returned,  the 
abut,  and  the  dashing  of  swords  waj 

The  counsel  for  the  king  stated  the 
to  the  following  purpose : 

"  We  find,  that  on  the  Sd  of  Febr 
jirisoner^  the  deceased,  and  three  otfa 
in  company  at  the  Castle- tavern,  and  < 
in  a  peaceable  manner  for  aboot  two 
The  prisoner  then  called  for  a  box  i 
but  none  beine  to  be  had,  he  callei 
pepper-box,  which  was  brought* — £ 
found  upon  the  table  $ — they  played  a 
—Mr.  Uioh  asked,  who  would  set  fa 
half-crowns  P  The  deceased  iaajocu 
ner  laid  down  three  half- pence,  a 
Ihere's  three  pieces— the  prisoner  ca 
an  impertinent  pappy,  and  threw  a 
him,  which  missed  lum,  but  brushed 
-^Tbe  deceased  tossed  a  glass  or  candl 
the  prisoner,  which  did  not  hit  him 
both  rose  up,  and  took  their  swords ; 
prevented  mm  fighting.— They  si 
a^in.— The  deonsed  wered  to  be 
with  the  prisoner ;  but  the  prisoner  a 
No,  Gad  damn  ye!  I'll  have  your  li 
God ! — ^In  about  an  hour  after  this,  t 
pany  all  went  out  of  the  room ;  but 
aoner  called  to  the  deceased,  and  said, 
gentleman,  a  word  with  ye.— They 
turned  into  the  room,— the  door  was  i 
violence,  and  the  claabing  of  swords  w 
—We  fiud  that  iram  the  time  that  tl 
was  flang,  to  tbc  time  of  the  breaking 
company,  there  was  no  wconciliation. 

Tliese  two  ron^h  drauj«hts  being  o 
and  some  alterations  bemg  made,  al 
drawn  op,  which  was  agrwd  to  and  a 
the  jury,  and  was  to  this  tenor. 

Spscul  Verdict. 

«  That  u|M>n  the  Sd  day  of  Fcbmai 
the  prisoner  and  the  deceased  were 
pany,  together  with  John  Rich,  ThoEfl 
Kins  and  Michael  Blunt,  in  a  roon 
Castle  •tavern  in  Dmry-lane,  in  the  c 
Middlesex,  in  a  friendly  manner.  1 
they  had  continued  thus  for  two  hours, 
dice  were  called  for ;  the  drawer  6ai< 
dice  but  no  box  ;  and  thereupon  the 
bid  the  drawer  bring  the  pepper-box,  ^ 
immediately  did  :  and  tnen  the  com 
gan  to  phiy  at  hazard ;  and  after  1 
played  some  time,  the  said  Rich  askei 
one  would  set  him  three  halt^owns  P 
upon  the  deceased  in  a  jocular  nsa; 
down  three  halfpenny  pieces,  and  the 
the  said  Rich,  1  have  set  you  three  pii 
the  prisoner  at  the  same  time  set  the  s 
three  half-crowns,  which  the  said  R 
and  immediately,  after  the  prisoner  in 
manner,  tnmcd  about  to  the  deceased, 
It  was  an  inpartinent  thing  to  aet  ha 
and  thai  Iho  daoeasad  ww  an 


Jlr4(rJIMb<^«HU»  Omt. 


Araint. 


t» 


j^lW  «>(lamir ;    to  which  the  dcFeased 

M  WborriT    caHe^    bim    su    ivns   a 

Tta  lhrrru[i>)n  lh«-  saii)  .luhn  Oni?l>y 

IlkNdr,  Bnd  wilh  grrat  furc«  llirpv  it 

Mfcf    ^rilhelmDfliGowEr;'    which 

■■M  hit  the  wid  Gnxrr,  but  brushed 

llfr.uit  pneaei  by  hi*  huid,  anil  heal 

Midi:  pnvitrr;    whereapon  tlie  de- 

^^diiW;  sftrr  iMsed  ii  CHwIlexticfc  oi 

^1  |int(hcl' JnhBnnirm  Olicbj,*  hut 

Hi  biw  niib  Ihe  same :    upan  which 

Bnl  ud  lb«  [insoner  both  rose  up  to 

^(■Mdt,  itiiicb  iben  htmg  tiji  in  (be 

Mlht  dcceaied  itrpw   hit  swoni,  but 

nr  MI  prevtnlF't'  frnm  dnwng  hit 

■fMji ;  and  Ibe  tlpcinfiHl  thereupon 

tf  hk  iword,  and  the  compuiy  iM«r< 

ItjrNtdDHnRcniTiror  Ihe  spare  of  n 

lilUlheFiEpirittinD  oF  an  hour,  lh« 

■M  to  Ihe  priMnier,  We  have  had  b«t 

Ijw  i»i*  ibe  aegremor ;  but  I  think 

■titorer;  and  bt  ihesanie  time  of- 

lad  Ktlbeiaid  John  ODcby,  lOTrhrdi 

ka  Oathv  nittwerEd,  M",  damn  you, 

t  t»Hir  bitwd.     They  furtlirr  Bod, 

WtIs  the  rtrkoniii^;  was  paid  by  Iha 

fee  pnioDer,   Hid),    Hawkins   and 

ll  all  the  company,  except  the  pri' 

iMit  n(  the  room  ti>  g<i  hume  ;  and 

Teiuainiiig  alotie  in  the  room,  called 

■Mh>I  in  these  words,  Young  tna 

K  I  have  somettiin^  to  say  tu  yoi 

kdie  deceased  rduraedinto  ih*  ruoi 

Mnlely  the  door  was  Ifltmg  (u  at 

Mvcfty  the  rest  of  the  company  we 

rvrf  then  B  dstliinr  of  swords  n 

■Ifce  nrituner,  with  Tiii  sword,  g»- 

■Md  tne  mortal  wound  meDtinncJ 

tamt,  of  which  he  died  the  next  day. 

ttm  tml,  riwt  at  Ihe  femkbig  up  of 


MaaGglit  wmwdi  in  (heenngement; 
tta  oeeeiacd  bong  atked,  upon  hii 


IMUldi 


did.    llial  Ann  tin  time  of 


M  iba  adtioe  of  tbs  Cmrt,  ai 

womtt  hting  carried  Itack  to  Newgate, 
vaa;  M7>  "or  about  a  twrirs-motiih, 
riMMOD,  •sdMgadb»ooiiMMdimH 
■i  M  tha  ftDascMtnr  bad  tahm  oa 
via  hta^Bg  m  the  kaariiig  «f  the 
^Jo,  ho  fraw  prett*  coiiHMit  tt 
r4mmm^ti  imm»amer,  and  ftad 
tmmn  *•  Cnart  of  Kii^a-beach  for 
■k  ta  ha  laada  liir  arnior  the  tpe- 
«Mbi>lbeOaM;  wliwhltcioff  or- 
etMormi  frm  Htgt ^ 


Bapoft^  Ml.  9,  p. 


M#lb«  Mlaaw  bilMsl  *•  lai,  il  WW  «■* 
kCmm&ui,  die  Court  befaifarMijiint  Hut  fl 
oonM  BOt  ha  aada  ■  Cutikim  in  hia  aliaoaea  | 
■i#J»nkM  TavBhWOae,  Y,  it  <MU  arnad 
WnrtMi  &vi^telk»U>ff,  an*  aajaHl 

aanifiwwJi  1«  awtor  ta  MaMM^mhtlklt 
m*  la  Mirfvor  MMlauhtais  f  ataUl  ww- 
nk»  «M  wUah  ta  km-  l»  ha  dMMltd,  tIM 
afwr  wilMaw  UUm  W  wJt,  aa2  that 
■alfivBH  toakhar  annaw  imlM.  fUk 
■•^  «iHn  toplio«  !■  lU  a«  itadf,  Ifnawn 
^ -  iMapaatMaHaat  tlni«WI« 


Balhtarh*«arii 
AapSawlhMw 
■dfthMl—ioft 


oAnnMl«adi*at|i»] 


«aM'  ••■MMfpivMei 


■t|i»iaiBl« 
BatWwaril 


miBMriM»t»*a.wriaff  ar  datav  aC« 
IMw  b*  Mr.  ««*«v  tW  «Mi*  ff)w«fcMa 
tvttaiitteM:  »*»aaib^  •Tbair.pmk 
iWi  »lblfl»  b«  wMlid,  IbaaAaatiwai  la 
lb.  IMS  aa<«at  «>  Mi.  Oncbt,  wbaaa  bMt 
t*  MM  WHDMMaU  aibeud  W  wbai  was 
*tolir  Mr.  ObtTCAr.  Aid  Aat  ilia  RMfdvii 
tbtodiftiiit,  Itkiak  caHM  hadiapma^ 
rtw  ba  MbMBt  of  tb«  (Tawt  in  Maw- 
wMm^  mmt  Iban  Iba  battto  thmn  br 
KpTbk  MMi<ib%a,  ni  Iraba  Ua  ba^ 
bwat  tba  flwdhaUcfc^  ar  battle  lowad  hj>  Odwv. 
did  sat  bfttbaipriaaBar  el  tba  bar:  that  ww 


■eonent  killing  bj 
in  Bf  nwfrid^g  « 


Id  peaev  maaihaled  byllriOewnv 

coMinaance  of  malioe  )»tbe  nriaonar  flw 

afeave  an  boor  alter  the  fiial  confliot.  What 
waa  doM  bore  hj  Ur.  Gtower  would  ban  beca 
nutiAaUe  in  him,  eten  if  the  caodlealiek  had 
hit  ibe  priwoer:  aod  io  it  wu  restored  ■■ 
HawrMlKe'ieaBC;  fbrthere  the  boUlo  returned 
by  Mr.  Cope  did  hit  the  defendant,  mod  broke 
bis  bead.  Aail  ai  %  act  done  hj  Hr.  Gower 
wia  jitrtifiabia  in  bmi,  it  follows,  that  it  caa 
ba  no  fcundatton  ta  exoiwe  or  mitiffate  the  «ah> 
by  Mr.  Oneby.'  The  eeaepi* 
"  of  ansaMnltby  A  upon  B. 
ind  pimaes  A  to  the  wall, 
where  A  in  b»  own  defence  kilh  B ;  this  ia 
held  ntarder  in  A,  thotigh  it  bu  many  siTonf 
riwuwattuces  in  flffonr  of  A,  which  arenotia 
tbia  caae.  Bat  I  appreheDd,  it  i«  not  necessary 
to  rIj  bately  oo  this  pmnt,  that  there  ia  inaiice 
iasplied  in  (be  ad  i  since  it  plaialy  appeara, 
upon  tboata(cof  thocaae,  (hat  heraisezpreaa 
iMliee.  When  Ibe  deceawd  waadeairoua  te 
end  (be  Battler  amieaUy,  (he  prisoner  repfiea, 
"Ne,  daoHi  yoa,  I  will  have  your  blood :" 
this  ezphiioB  and  goea  Areufih  (he  whde  fbet, 
and  pnnea  the  auhaeqnent  failliog  to  be  malt- 

I  do  therefore  insist,  that  takinf;  it  ather 

way,  citber  as  a  killitiir  out  of  malice  implied, 

malice  express,  i'  '  "'  <  ■•  —  ■^•- 


npoo  the  Hat  ii  a  killing  of  malic 
aadapoa  tbe  priswar^  awa  worda  coupled 


SJJJ 


12  GEORGE  I. 


Trial  tf  Major  Oneb^f 


D 


i»itb  the  fact,  it  is  m&lice  express,  and  conse- 
queiitly  murder. 

Serjeant  Eyre^  for  the  defendant.  The  ques- 
tion is,  what  degrree  of  homicide  this  is;  and  I 
apprehend  it  to  be  but  manslaugrhter :  the  dis- 
tinction is,  that  if  the  killings  be  of  malice  fore- 
thought, it  is  murder;  if  on  a  sudden' occa- 
sion, it  is  but  manslaughter ;  and  that  I  take 
to  be  this  case:  in  3  Instit.  61  malice  pre- 
pensed is  defined  to  be,  when  one  compasseth 
to  kill  another,  and  doth  it  udato  animo  :  on 
the  other  hand,  manslaugliter  is  the  doin^  it 
without  premeditation,  upon  a  sudden  brawl, 
shuffliofif,  or  contention.  3  Instit.  57. 

The  law  has  ever  been  indnlmrent  to  the 
passions  of  men ;  <  ira  furor  bre? is  est,'  and 
therefore  as  a  roadman,  the  party  is  excused 
for  what  he  does  in  a  sudden  transport  of 
pasRion.  I  do  admit,  that  bare  words  are  no 
provocation ;  but  yet  they  will  serve  to  explain 
the  nature  of  the  combat,  and  shew  whether 
it  was  sudden  or  not.  The  calling  the  prisoner 
a  rascal,  was  what  no  man  of  honour  could 
put  up ;  and  as  this  was  the  beginning  of  the 
quarrel,  the  fijc^htinrr  was  as  sudden  as  the  re- 

S roach ful  words.  If  the  prisoner  had  stabbed 
^Ir.  Gower,  upon  speakmg  the  words,  and 
Gower  had  done  nothing,  I  believe  it  would 
have  been  murder ;  but  here  was  a  regular 
tight,  an  interchange  of  blows,  and  so  it  comes 
up  to  the  case  put  in  Kelyng  o5,  of  a  combat 
1»etween  two  of  a  sudden  heat ;  where  if  one 
kills  the  oilier,  it  is  but  manslaughter. 

The  law  has  fixed  no  certain  time,  when  it 
shall  be  presumed  the  passions  of  men  arc 
cooled.  The  case  in  12  Co.  87,  must  take  up 
a  longer  time  than  this  ;  fur  there  the  boy  ran 
three  quarters  of  a  mile  to  his  father,  and  told 
his  story,  and  after  that  the  father  provided 
himiiplf  with  a  cudgel,  and  had  as  far  to  fro 
in  pursuit  of  the  other  boy ;  and  there  is  this 
ditference  between  that  case  and  the  case 
at  bar ;  that  there  the  adversary  was  out  of 
sight,  but  here  he  continuc<l  in  presence, 
which  must  rather  inflame  than  abate  the 
passion. 

I'he  words  made  use  of  by  Mr.  Gower  carry 
an  imputation  on  Air.  Oneby,  which  migKt 
provoke  him  afresh ;  the  tellmg  him,  he  was 
ihe  aggressor,  was  not  likely  to  make  an  end  of 
the  quarrel :  and  that  is  plain,  from  the  manner 
in  which  Mr.  Onehy  understood  them,  who 
would  never  have  said  so  harsh  a  thing  to  his 
friend  Mr.  Gower,  if  he  had  l>eeo  at  that  time 
in  an^'  degree  musicr  of  himsell*. 

It  is  not  ibund  by  the  verdict  who  began, 
after  Air.  Gower  returned  into  the  room :  it  is 
not  likely  the  prisoner  began,  because  he  hail 
his  great  coat  thrown  over  \m  shoulders ;  and 
as  to  the  shutting  the  door,  it  is  stated  to  be 
done  immediately  on  Mr.  Gower's  returning, 
and  is  likelier  to  be  done  by  him  that  came  into 
the  room.  When  the  first  conflict  happened,  it 
appears  Mr.  Gower  was  the  readiest  to  draw 
his  sword;  it  was  actually  drawn,  and  Uie 
priaooer'i  was  not ;  and  lince  it  ia  not  italadi 


who  drew  first  the  second  time,  I  think  itoog 
to  be  explained  by  the  first. 

To  make  it  murder  in  the  first  instance, 
must  be  done  with  a  weapon  that  wouki  m 
danger  life.  The  bottle  in  Mawgridge'a  a 
was  full  of  wine,  and  it  hit  him  (Cope)  sa  m 
lently,  that  he  never  spoke  more.  But  fbrs 
thing  appearing  upon  the  verdict,  this  am 
be  onl^  a  small  oil- bottle,  usually  set  v^] 
tables  m  pnblic-boujies;  and  might  perhapa 
empty  before  it  was  flung.  The  case  of 
Turner,  which  is  taken  notice  of  in  Comb.4i 
was  held  manslaughter  upon  this 
cause  the  clog  was  not  such  an  i 
from  a  blow  with  which  it  was  Ukelj 
should  ensue.  But  supposing  the  bottle 
be  as  big  and  as  full  as  Mawgridge's  ' 


jfet  no  harm  was  done  by  it  here,  as  tbcra 
m  Mawgridge's  case.  Here  was  no  dra^ 
the  sword  eo  instante^  as  Mawgridge  « 
which  occasioned  the  judges  to  lay  th^ 
turning  the  bottle  by  Mr.  Cope  out  ot  the  ^ 
and  construe  the  immediate  drawing 
sword,  as  an  intent  to  supply  the  miacft 
which  the  bottle  might  fall  short  of;  ande"^ 
in  that  case,  one  great  man  difi*ered  from 
rest  of  his  brethren. — So  that  Mawgriilc 
case  is  materially  difl*erent  from  this.  Tti 
the  intention  from  the  first  throwing  the  bo( 
was  to  commit  munler,  here  it  was  othenri 
There  the  first  boUle  hit,  here  it  missed.  Th 
the  murderer's  intent  was  immediately  earn 
into  execution,  here  was  a  long  intermplil 
The  deceased  needed  not  have  returned,  if  I 
baii  not  been  equally  disposed  to  combat;  ■ 
he  himself  said  it  was  a  fair  combat,  wUi 
there  was  no  pretence  to  lay  in  Mawgridp 
case. 

Serjeant  Darnall  replied.  The  words  on bi 
sides  must  certainly  be  laid  out  of  the  case; 
not,  puppy  was  worse  than  rascal,  because 
is  the  name  of  a  beast.  If  Mr.  Gower  ti 
Oneby  to  be  the  aggressor,  the  condescend 
was  greater  in  him ;  it  is  no  more  than  say  fa 
I,  who  have  been  injured,  am  ready  to  pasi 
by.  I  do  not  find  it  was  at  all  reiie<l  upon 
Mawgridge's  case,  that  the  bottle  was  fu 
and  as  to  the  case  in  Coinberbatch,  Tumc 
servant  there  had  committed  a  fault,  for  wh 
he  was  liable  to  be  c(>rrecte<l :  the  decease 
declaration  was  only  that  he  received  i 
wound  by  a  fair  push. 

The  Court  sniil  nothing  upon  this  arguroc 
but    appointeil  another  to  oe  before    all 
judges  of  Eugland.     And  in  Easter  term  1 
k)wing  (May  6),  it  was  accordingly  argued 
Mr.  liCe  fur  the  king,  and  Air.  Kettleby  (i 
,  jeant  liaynes,  who  was  rvtaiiu-d,  being  ill) 
the  prisoner,  to  the  same  efl*ect  as  the  fore 
argument.  Str.  vol.  2,  770.    Tlii>  prisoner 
being  present  in  Serjeants-inn  (ChaiictTy-lai 
a&  he  was  in  court  u|)on  the  first  argumei 
this  last  lieing  only  tu  have  the  advico  of 
other  judgtti 


/sr  Iht  Murder  nf  WiHiam  Comer.  A.  D.  1726.  [42 

i-allfil  htlf-erotms;  ifaai  thereupon  Ihe  said 
William  GoivFr,  in  n  jocular  raatiQer,  lel  tbree 
piccRS  "f  money,  cnlkil  li(lt-|ieiice.  Boil  then 
ni  J  to  th«  saiti  J'jhn  Rich,  ihat  h<'  hud  set  him 
ibrer  piecM ;  that  ilie  solil  John  Ooeby,  ul  ihs 
same  time,  kcI  tbe  saiJ  John  Ricli  tlirce  hnlt- 
crowDs,  nhich  the  Eaid  Jobn  Rich  won;  and 
imn»>(1ialely  the  <uiil  John  Oneby,  in  an  angry 
manlier,  lamed  to  the  said  William  Goiter, 
and  BBid  to  him,  that  it  was  an  impertinent 
tliini*  to  H-t  balf-ppnee ;  snil  I'urther  anid  lo  the 
said  William  Gower,  that  he,  ihe  laid  William 
Gower,  was  an  impertioeni  \>up\>y  in  sodoiog; 
lo  which  the  said  Witlinm  Gower  then  and 
there  answered,  that  whosoever  culled  him  to 
rascal;  and  thereupon  the  laid  Juhn 
Oneb;  tnoL  up  a  ^lans  biiitle,  and  wiih  i;reBt 
force  threw  it  at  the  said  Wilham  Gower  ;  but 
the  glasa  boHie  did  oot  strike  Ihe  said  William 
Gower,  hut  passing  by  near  his  heail  brushed 
*  'a  nemlce,  which  he  llien  had  upon  hii  head, 
id  btat  out  some  of  llie  powder  out  iif  hii  pe- 
ike  ;  that  thereupon  the  said  WiUiHin  Gower, 
immediately  aiier,  loase d  a  g\n%s  nr  <'andleslick 
at  the  said  John  Ooeby,  but  the  iflant  or  cau- 
dlestick  did  not  hit  the  said  John  Onehv,  iiuun 
which,  both  tlie  said  John  Oueby  and  Wilham 
Gower  jiresenllv  rose  fruin  their  aeals,  to  fetch 
their  swords,  which  then  bung  uii  in  the  room ; 
and  Ihe  said  William  Gower  thro  di-ew  hi* 
Bword  out  of  the  soahbard,  hut  the  niiid  John 
Onehy  •cat  hindered  by  olheri  of  tbe  cumpany 
from  drawing  hisNimrd  nut  ol'  Ihe  scabbani  ; 
whereupon  the  inid  William  Gower  threw 
away  hia  sword,  and  iiy  the  interpoiitioo  of  tbe 
■aid  Jobn  Rich,  ThomaH  IUivLiuh,  and  Mi- 
chael Btiinl,  tbe  smd  Wdlinin  Gower  and  John 
Oneby  «Bt  dnwn  8);^iii,  uU'l  beutg  so  set  iliiwo, 
contiuueii  lor  th>'  Etiiucc  uf  an  hour,  in  company 
with  the  said  Juhn  Rich,  Tliomaa  Hawkioa, 
and  Michael  Blunt ;  ihat  after  the  cxpiraiion 
of  thai  hour,  the  said  William  Gower  said  to 
the  said  John  Oiieby,  We  have  had  hot  worda, 
but  ynu  waa  the  aggressor,  but  I  think,  we 
may  iiasi  it  over ;  and  at  Uie  same  time  tha 
■aid  VVilliam  Gower  offered  his  band  lo  the  said 
John  Oneby  ;  to  which  the  said  John  Oneby 
then  aoswcreil  the  said  William  Goner,  No, 
damn  you,  1  will  have  your  blood  ;  Ihat  atter- 
wardc  Ihe  reckoning  was  paid  by  the  said  John 
Oneby,  VVilliam  Gower,  John  Rich.  Thomas 
Hawkins,  and  Michael  Blunt;  and  tluit  th« 
Eaid  William  Gnwer,  John  Rich,  Tbomaa 
Hawkins,  andMichael  Blunt,  went  out  of  the 
said  ninju,  with  an  intent  id  go  home,  leafing 
the  said  jobn  Oneby  in  Ihe  room  ;  thai  Ihe 
said  John  Oneby,  so  a<i  aforesaid,  remaining  in 
Iherooiu;  called  to  tbe  aaid  William  Gnifer, 
Young  man,  come  back,  I  have  something  ID 
say  loyou;  that  tliereu|HJn  Ibe  Siiid  Wdbam 
Gower  returned  into  the  aaid  room,  and  tba 
door  nf  tbe  room  was  unroedialely  flung  lo,  and 
shut ;  by  reason  ol  which  shulting  of  the  door, 
all  of  the  said  company,  besides  the  said  Wil- 
liam Gower  and  Jobn  Onehy,  were  shut  out  of 
Iberuoin,  and  thai  llien  alter  ahuiline  of  tba 
door,  a  clashing  of  sworda  was  heard  i  tbeu 


tm,  tS  Gm.  1,  and  1  Geo.  S,  1TS7. 

XfoaJiy,  Jitnt  11. 
t/bf  being  brought  to  tlie  bar  froin 
\t»i  the  resolution  of  the  Court, 
Raymond*  delivered  ihe  npi- 
jadges,  in  the  folloniug  manner, 

KlSR  Mrl.  Jons  OlSEBY. 

tanal  sessioiis  of  the  peace,  held 
lall,  for  the  county  of  Midillesex, 
Fdwusry,  in  the  13th  year  of  bis 
ip],  John  On^y.  of  St.  Martin's 
I,  ttot,  was  indicted,  for  that  he, 
■1  February,  19  Geo,  al  the  said 
■iouily,  foloDtarily,  and  of  bis 
Rlbanghi,  made  an  aasaull  upon 
Goner,  e*q.  and  that  he  the  said 
iritb  a  sword,  which  he  then  and 
'diawD  in  his  right  hand,  the  said 
in  and  upon  the  lel^  part  of 
.be  navel,  lekiniously.  volun- 
tf  his  mabce  fore'lhoushl,  did 
thrust,  giving  the  said  William 
~  and  there,  with  Ibe  aaid  drawn 
upou  bis  said  left  part  ot*  his 
e  (tare),  a  noortal  wound  ;  of 
wound,  the  said  William  Gower 
iwliing  condition,  from  Ibe  aatd 
'cbruary,  to  the  Srd  day  of  tbe 


■  nid  mortal  wound,  did  die ;  and  sn 
>4kd,  Ihat  the  said  Oneby,  the  said 

fcfe)ollioully,  Toluniarily,  and  of 
thought,  did  kill  and  murder. 
Icment  being  delivered  to  the  jus- 

r delivery  for  Newgale,  Ibe  said 
was  arraigned  thereupon,  aod 
Guilty.  And  u)Miu  the  Trial. 
id  belore  Mr.  baron  Hale,  and 
tTbompson,  reconler  of  London,  the 
■Im  special  verdict  lullowing,  viz. 
llw  said  Joho  Oneby,  and  the  snid 
>«w«r,  together  wiih  John  Ricli, 
lawkiiM,  and  Michael  Blunt,  were  in 
iQgrlher  in  a  room  in  (he  Gastle  la- 
e  parish  ofSt.  Martin's  in  tbe  fields. 

J  manner ;  that  after  the  saiil  John 
iatn  Gower,  Jobn  Rich,  I'hoiiias 
and  Michael  BInnI,  had  continued 
I  ibe  saiil  room,  lor  ihe  space  of  two 
>K  and  dice  were  called  for;  where- 
drawer  aaid,  that  he  bad  dice  but  no 
llul  thcreu|Hin  Ihe  said  Juhn  Oneby 
«!  ihe  drawer  In  bring  a  pepper-hox, 
hogly  a  pepper-box  HHil  dice  were 
Ihal  milled  lately  after,  tbe  said  John 
HUam  Uuwrr,  Julm  Rich,  Thomas 
•nd  Michael  Bluul,  began  to  gday 
nod  after  Ihey  hod  played  hall  : 
Mid  Jobn  Rtcb  B«ke<l,  il  any  of  (he 
Mold  *H  him  three  pieces  of  money, 

■    3, 


43]  IS  GEORGE  L 

the  jury  find,  that  the  said  John  Onebj  gare 
the  said  William  Gower,  with  his  swonJ,  tho 
mortal  wound  in  the  iDdicttnent  mentioned,  of 
which  he  died ;  but  they  further  find,  that  at 
the  hreafcing  up  of  the  company,  tlie  said  Joho 
Oneby  had  his  great  coat  thrown  over  his 
shoulders,  and  that  the  said  John  Oneby  re- 
ceifed  three  small  wounds  in  the  fighting  with 
the  said  William  Gower,  and  that  tliesatd  Wil- 
ham  Gower  being  asked  upon  his  death-bed, 
whether  he  the  said  William  Gower  had  re- 
ceiTcd  his  wound  in  a  roanoer  among  swords- 
men called  fair  ?  answered,  I  think,  I  did :  and 
they  fuither  find,  tliat  from  the  time  the  said 
John  Oneby  threw  the  glass  bottle  at  the  said 
William  dower,  there  was  no  reconciliation 
between  the  said  John  Oneby  and  William 
Gower :  and  whether  this  is  murder  or  man- 
slaughter, the  jury  pray  the  advice  of  the 
Court:  and  if,oec.'' 

So  that  the  question  upon  the  special  verdict 
is,  whether  John  Oneby,  the  prisoner  at  the 
bar,  is  guiltv  of  murder  or  manslaughter? 

A  great  deal  of  time  was  spent  m  drawing 
up  this  snecial  rerdlct ;  for  although  the  trial 
at  the  Ola  Bailey  was  in  the  beginning  of  hist 
Blarch  was  19  months,  yet  the  record  was  not 
removed  into  this  court,  'till  Hilary  term  last, 
towards  the  end  of  which  term,  it  was  argued 
by  counsel  on  both  sides  ;  and  another  argu- 
ment beincjr  desired  by  the  counsel  for  Uie  pri- 
soner, we  thought  it  proper  to  desire  the  opt- 
uion  of  all  the  rest  of  the  judges ;  and  for  that 
purjiose,  it  was  argued  berore  all  tho  judges,  at 
;sterjeant'8-inn  hall  in  Chancery-lane,  upon  the 
6ch  day  of  May  last,  which  was  as  soon  as  all 
the  judges  could  meet,  by  reason  of  the  inter- 
vention of  the  circuits.  And  at\er  mature  con- 
sideration had  upon  a  meeting  of  them,  they 
uriaiim  gave  their  opinions,  and  came  to  this 
resolution  unanimously,  not  one  of  them  dis- 
senting, and  which  1  nave  authority  from  them 
to  declare,  viz. 

That  John  Oneby,  the  prisoner  at  the  Iwr, 
npon  the  facts  found  upon  this  special  verdict, 
is  guilty  of  murder. 

Without  entering  into  a  nice  ezaminatbn  of 
the  several  definitions  or  descriptions  of  mur- 
der, as  they  are  found  in  the  old  law-books,  as 
Bracton,  Britton,  and  Fleta,  where  the  wicked- 
ness of  the  act  is  aggravated  by  the  circum- 
stances of  secrecy  or  treachery,  murder  has 
been  long  since  settled  to  be  the  voluntary  kill- 
ing a  person  of  malice  prepense;  and  that,  whe> 
ther  it  was  done  secretly  or  publidy.  8tanndf. 
PI.  Cor.  18,  b.  S  Inst.  54* 

But  then  it  must  be  considered,  what  the 
word  malk;e  in  such  case  imports.  In  com- 
mon acceptation,  malice  is  took  to  be  a  set- 
tled anger  (which  requires  some  length  of 
time)  in  one  person  against  another,  and  a 
desire  of  revenge.  But  in  the  lenl  accepta- 
tion, it  imports  wickedness,  whicn  includes  a 
circumstance  attending  an  act  that  cuts  off  all 
cicase.  By  35  H.  8,  o.  3,  ibr  taking  away 
dergy,  it  is  enacted,  That  every  penon  who 
•hnll  ne  indictMl  of  the  erina  ttenin  men- 


Trial  of  Major  Oneby^ 

tioned,  and  thereupon  arrugned,  and  si 
mute,  of  malice  or  of  frowaraiiess  of  xm 
shall  lose  the  benetit  of  his  dergy.  Nov^ 
that  place,  malice  can  never  be  understooc 
the  vulgar  sense;  for  the  party  cannot 
thought  to  stand  mote,  out  ot  a  settied  asfl 
or  desire  of  revenge,  but  only  to  save  himSH 
and  therefore  such  staiHling  mute,  and  reAw 
to  submit  to  the  course  of  justice,  is  said  tfl 
done  wickedly,  i.  e.  witliout  any  manner  of* 
cuse,  or  out  of  frowardness  of  mind. 

Tliis  malice,  an  essential  ingredient  to  ma 
the  kilUnff  a  peraon  murder  (to  use  Ike  eipp 
sions  of  lord  chief  justice  Coke,  and  lord  4l 
justice  Hale,  whose  authority  hath  estabU 
them,)  must  be  either  implied  or  express ;  i 
says  Hale,  in  his  Pleaa  of  the  Crown  44,  t 
implied  nuilioe  is  coUeoted  either  from  the  m 
ner  of  doing,  or  firom  the  person  slain,  or  i 
persoiTkilliog.  As  to  the  two  last,  there  in 
occasion,  at  present,  to  take  them  into  oon 
deration. 

1.  As  to  the  first,  viz.  firom  the  maMiei 
doing,  as  Hmle  expresses  it,  or  as  Holt,  ehi 
justice  (vide  Mawgridge*s  case  poiUa)  m 
firom  the  nature  of  the  action  :  1.  Wilfiii 
poisoning  any  man  implies  malioe.  S.  U 
man  doth  an  act,  that  apfwrently  must  d#  bar 
with  an  intent  to  do  harm,  and  death  easm 
it  will  be  murder.  As  if  A  runs  with  n  hsn 
used  to  strike,  amongst  a  multitude  of  peop 
and  the  horse  kills  a  man,  it  will  be  mesdi 
for  the  law  implies  maKoe  firom  tlie  nataie 
the  act.  3.  Killing^  a  man  without  a  provoi 
tion  is  murder ;  as  if  A  meets  B  in  the  sirs 
and  immediately  runs  him  through  wtlli 
sword,  or  knocks  out  his  brains  with  a  hai 
mcr  or  bottle.  And  if  angry  words  had  pe« 
in  thai  case  between  A  and  B,  yet  it  wm 
have  been  murder  in  A,  becauKe  woi-da  are  i 
such  a  provocation,  as  will  prevent  such  e  I 
mioide  from  being  murder;  lord  Morie; 
case,  Kelynge  5Q*.  4.  The  law  will  imj 
malice  from  the  nature  of  the  original  aetii 
or  first  assault,  though  blows  pass  between  t 
parties,  before  the  stroke  is  given,  which  ooi 
sions  the  death.  As  if  npon  angry  worda 
abusive  language  between  A  and  B,  of  a  sudd 

A,  without  any  provooalion  (for  aogry  woi 
or  abusive  language  in  snch  a  case  is  look 
on  as  none),  draws  his  sword  immediately,  n 
makes  a  pass  at  B,  or  strikes  at  him  with  ai 
dangerous  weapon,  as  a  pistol,  hammer,  lar 
stone,  &c.  which  in  all  orobability  might  I 

B,  or  do  him  some  great  oodily  hurt,  and  tb 
B  draws  his  sword,  and  mutual  |>aKses  i 
made,  and  A  kills  B,  this  will  be  murder,  i 
the  act  was  voinntary ;  and  it  appears  fn 
the  nature  of  it,  that  it  was  done  with  an  i 
tent  to  do  mischief;  and  therefore  since  in  ; 
probability  it  might  have  occasiooed  B's  deal 
or  dona  liim  some  great  bodily  harm,  the  li 
implies  malice  prepense ;  and  the  resistance 
passes  that  vrere  made  bv  B,  were  but  in  ti 
defence  of  his  person,  which  was  violently  ai 

«  Seevd.  6,p.7a»eftUiCoUectinB. 


lii^tvv  bMB  carried  before.  9.  That 
■tteraned  with  the  onaDimoiis  opi- 
MIlfcelheB  jadget,  for  one  rerj  great 
fifcelheBtwelfe,  viz.  lord  Trevor,  dif> 
m  the  other  judges,  and  held  it  was 
■Auirhter.  fiitt  opoQ  our  meetincT  to 
ef  Aia  prcaent  case,  all  the  judges 
mdj  agreed,  that  Mawgridge's  case 
med  lair  f ,  and  that  that  judgment 
te  and  jast  judgonent,  so  groundless 
iHiaiiatioDy  which  had  ^en  made 
ao  miouatioD  there  was)  in  West^ 
mH,  that  same  of  the  present  judges 
ipaioo,  that  the  judgment  in  Maw- 
aaa  was  not  a  legal  judgment, 
lia  is  aa  naoch  as  is  necessary,  rather 
I  is  necessary,  tocbe  said  as  to  im- 
i0i^  ainoe  there  will  be  no  occasion  in 
la  kok  out  for  malice  implied, 
ioa  ncpreas  is  a  design  formed  of  tak- 
aaollMr  man's  life,  or  of  doing  some 
la  BBoiher,  in  the  execution  ofwhic^ 
And  this  holds,  where 


p  ia  Bot  foTVied  against  an^  particu« 
if  as  if  A^  having  na  particular  ma- 


person,  comes  with 
naalatioo  against  all  opposers ;  if  the 
ImfM,  mad  death  ensoe,  it  is  murder. 
tacoauMt  a  riot,  to  enter  iato  a  park, 
B%  case,  H.  P.  C.  47.  Moore  86,  Sar. 
FA  fMa  with  a  reaolotion  to  kill  the 
he  aaals,  and  meeting  B,  kills  him, 
lar  wiA  exjpnas  maKoe :  yet  A  had 
wi  mmf  mahce  minst  D,  nor  a^nst 
iiaon,  Hach  more  it  will  ba 
F,~  when4ie  mischievons  design  is 
at  anj  particular  person,  which 
•vidmit,aB  well  hj  mmmstances 
I  gpiaas  dedaratiana  of  the  per- 


V 


Eve  him  no  provocation  wliatsever ;  for  when 
r.  Gower  set  the  three  halt- pence,  he  set 
them  against  Mr.  Rich,  and  that  in  a  jocular 
manner ;  tlierefore  that  was  no  affront  to  Mr. 
Oneby.  2.  Upon  that  Mr.  Oneby  turned  to 
Mr.  Gower  in  an  angrv  manner,  and  g^ve  him 
abusive  language,  and  called  him  impertinent 
puppy;  the  answer  of  Gower  was  not  im- 
proper, nor  more  than  what  might  be  expected, 
that  whosoever  called  him  so  was  a  rascal. 
3.  That  as  Oneby  had  before  begun  with 
Gower,  by  giving  hire  abusive  language,  so  he 
then  took  up  the  glass-bottle,  *  et  magnll  cum 
?i,'  threw  at  Gower,  and  beat  the  powder  out 
of  his  peruke ;  if  it  had  killed  Gower  it  had 
certainly  been  murder;  upon  which  Gower 
tossed  a  gloss  or  candlesticK  at  Oneby •*  And 
the  difference  of  Anding  in  the  special  verdict 
is  observable:  Oneby  threw  the  bottle  at 
Gower,  *  magnft  cum  vi;'  Gower  only  tossed 
the  glaoa  or  candlestick  at  .Oneby.  4.  Whan 
they  fetched  their  awords,  Gower  did  it  only  to 
.defend  himself;  for  tba  verdict  finds,  that 
though  Gower  drew  his  sword  first,  jix  the 
prisoner  at  the  bar  being  hindered  by  the  com- 
pany from  drawing  his  sword,  Gower  there- 
upon threw  his  sword  away.  5.  By  the  in- 
lerpoaition  of  the  company,  the  prisoner  at  tba 
imr  and  Mr.  Gower  sat  down  again,  and  con- 
tinued in  company  for  an  hour ;  after  which 
Mr.  Gower  said.  We  have  had  hot  words,  but 
yon  was  the'  aggressor,  but  I  think  we  may 
pass  it  over,  and  offered  his  band  to  the  pri- 
soner ;  that  the  priaoner  at  the  bar  was  the 
jggressor,  is  true,  and  that  in  a  violent  manner : 
Tlua  was  sufficient  to  have  appeaaed  Mr. 
Ond>y:  hot  what  is  his  answer  r  No,  damn 
yoo,  I  will  have  yoar  blood.  There  ia  an  ex- 
I  pnsa  declDration  of  malice,  an  express  de- 


O      A.t 


47]  12  GEORGE  I. 

room ;  that  the  prisoner  remaioioi^  in  the 
rtyna,  called  to  the  said  William  Giiwer.aaviogf, 
<*  Yuunt;  maa,  comeback,  I  have  aometliiDK'  to 
say  to  }-0H."  Tltene  word*  also  shew  a  plain  de- 
Jiberaliofl ;  and  l>ciiig' attended  with  tbedrcum- 
ataoces  tuiiud  tiefure,  and  what  foltowa  imnie- 
dialely,  import  c»n tempt;  **  Youn|r  man"  are 
insolent  and  impmous,  and  **  Come  back,''  im- 
port a  re»<;ntmc'nt  he  had  conceived  aniust  Mr. 
Gower,  abriut  which  he  had  somethin{|^  to  say 
to  him.  For  what  purpose  did  the  prisoner 
stay,  after  all  the  company  had  left  the  ro(rm 
to  go  home?  It  was  to  say  something  to  Mr. 
Gowcr.  What  is  that?  Wliy,  as  soon  as  BIr. 
Gower  is  returned  into  the  room,  the  door  iras 
immediately  flung  to  and  shut,  and  the  rest  of 
the  company  shut  out;  and  then  after  shutting 
die  door,  a  cla-shing  of  swords  was  heard,  and 
the  prisoner  gave  .Mr.  Gower  the  mortal  wound, 
of  which  he  died. 

These  immediate  subsequent  facts  shew, 
what  it  was  the  prisoner  had  to  say  to  Mr. 
Gower ;  it  was  to  carry  the  malicious  design, 
be  bad  bHbre  declared  he  had  against  Mr. 
Gower,  into  eiecution,  viz.  to  have  his  blood ; 
and  be  had  it,  for  be  gave  him  the  wound  of 
which  he  died. 

To  go  further:  If  the  prisoner  had  malice 
against  Mr.  Gower,  though  tfiey  tbuglit  alter 
the  door  was  shut,  the  interchange  of  blows 
will  niake  no  diflerence ;  for  if  A  has  malice 
against  B,  and  meets  H,  and  strikes  him,  B 
draws,  A  flies  to  the  wall,  A  kills  B,  it  is 
murder.     H.  F.  C.  42.  Kelynge  58. 

Nay,  if  the  case  had  been,  that  there  had 
been  mutual  malice  between  the  prisoner  and 
Air.  Gower  (which  does  not  appear  to  have  been 
on  tlie  part  of  the  deceased)*  and  they  had  met 
and  fought  upon  that  malice,  the  killing  Mr. 
Gower  by  the  prisoner  had  been  murder. 
11.  P.  C.47.  1  Bulstr.  86,  87.  Hob.  121. 
Crompt.  21. 

The  jud^  were  all  of  opinion,  upon  the 
ftcts  found  m  this  verdict,  there  appeared  to  be 
express  malice  in  Oneby  against  Mr.  Gower ; 
and  then  Oneby  killing  Gower,  having  such 
express  malice  against  him,  they  were  all  una- 
Dimous,  and  clear  of  opinion,  that  this  was 
plainly  murder. 

Having  thus  mentioned  the  reasons,  upon 
which  we  ground  this  present  resolution,  1  shall 
next  consider,  if  any  of  the  objections  made 
by  the  counsel  for  the  prisoner  are  in  answer 
to  these  reasons,  or  take  off  the  force  of  them. 
The  counsel  i'or  the  pri«Mier,  Mr.  Oneby,  in- 
sisted, that  upon  the  whole  verdict,  the*  case 
was  no  more  than  that  from  a  slight  occasion 
passionate  words  arose,  mutual  reproaches 
passed;  the  quarrel  was  sudden,  mutual  as- 
saults were  made;  and  on  a  sudden  figliliug,  in 
heat  of  passion,  the  prisoner  killed  the  de- 
ceased, which  can  be  uo  more  than  man- 
alaiiflhler. 
That  such  fact  could  amount  to  no  more 

*  The  verdict  implies  the  contrary:  Fur  he 
•ffarad  him  his  handy  te.    Fifrmcr  "EdUuM. 

4 


Trial  of  Major  Onebyt 

than  manslaozhter ;  they  cited  the  known  c 
that  if  A  and  B  fall  out  lipon  asiidtten,  and  L 
presently  aji^ree  to  tight,  and  each  fetches 
weapon,  and  go  in  to  the  tit-Id  and  fight,  and 
of  them  kills  the  other ;  this  is  but  maoaiaugfc: 
H.  P.  C  48. 3  Instit.  67,  because  the  pas^ 
was  never  cooled. 

In  this  case  (said  they)  it  is  plain  the  tp^ 
arose  on  a  sudden  ;  Mr.  Onebv's  passion 
raised,  and  that  it  is  not  founcf  by  ttie  jur^ 
have   ever   been   cooled;    and   therefore 
words  3lr.  Oneby  spoke.  No,  damn  yoiB 
will  have  your  blood,  Nc<r.  were  only  wordm 
heat,  spoke  under  the  continuance  of  the  ■ 
passion.      And  they  further  insisted,  that 
law  hail  fixe«l-'no  time,  in  which  the  pasm 
must  l>e  took  to  be  cool ;  but  that  depemn  a  . 
circumstances,  of  which  the  jury  are  the  pre 
judges.      In  this  rase,  the  whole  time  ■ 
passed,  between  the  f|uarrel,  and  giving 
mortal  wound,  was  but  little  more  tban 
hour;  and  it  has  been  adjudged,  that  the  p 
sion  shall  not  be  took  to  be  cooled  in  very  c 
that  time.     12  Co.  87.    Cro.  Jac.  996.  H. 
C.  48,  Rowley 's  case,  where  the  child  oT 
beat  the  chiUl  of  B.    B's  clnld,  all  bk>ody, 
home  to  his  father ;  B,  the  father,  ran  tla 
quarters  of  a  mile,  and  beat  the  child  of  A ; 
means  whereof  he  died  :  This  was  adjudged 
be  only  manslaughter ;    yet  there  must  ha 
been  a  considerable  time  after  B  was  provok 
by  the  usage  of  his  child  before  he  killed  A 
child,  because  he  ran  three  quarters  of  a  mill 
yet  it  lieing  one  continual  passion  raised  ia  1 
upon  tbe  boating  of  his  child,  it  was  held  ll 
was  only  mansUiughter.    And  in  this  preM 
case,  to  shew  the  passion  of  Mr.  Oneby,  wUi 
was  suddenly  raised,  was  not  cooled,  thu  cou 
for  Mr.  Oneby  observed,  tliat  the  jury  had  c 

Kressly  found  that  there  was  no  reconcilialii 
etween  Oneby,  the  prisoner,  and  Mr.  Gowi 
the  deceased,  from  the  time  Mr.  Oneby  ii 
threw  the  bottle. 

This  1  take  to  be  the  chief  objection,  up 
which  the  counsel  for  the  prisoner  principal 
relied. 

In  answer  to  this  objection,  I  must  first  ta 
notice,  that  where  a  man  is  killed,  the  law  « 
not  presume  that  it  was  upon  a  sudden  quarr 
unless  it  is  proved  so  to  be ;  and  therefore 
Lcgg's  case,  Kelynge  37,  it  was  agreed,  up 
evidence,  that  if  A  kills  B,  and  no  sudden  qui 
rel  appears,  it  is  munler ;  for  it  lie^  upon  t 
party  indicted  to  prove  the  sudden  quarrel. 

In  the  next  place,  from  what  I  have  aaid  I 
fore,  it  ai)i»ear8,  that  though  a  quarrel  was  sc 
den,  and  mutual  fighting  before  the  mor 
wound  given,  it  is  by  no  means  to  be  to 
as  a  general  rule,  that  the  killing  a  man  « 
be  only  manslaughter.  It  is  true,  if  i 
proaeht'ul  language  passes  between  A  and  , 
and  A  bids  B  draw,  and  they  both  dn 
(it  is  not  material  which  of  tliem  dra* 
first,)  and  they  both  fight,  and  mutual  |iaai 
are  made,  death  ensuing  from  thence  will 
oolv  manslaughter,  because  it  was  of  a  sudd« 
and  each  ran  the  haiard  of  hit  lift.    But  tin 


fir  ike  Murder  of  miUam.  Gc^^r. 


A.  D.  me. 


m 


fe  difi^Knce  between  thai  caie,  and 
ifHi  words  A  drawa  his  sword,  and 
.  pMS  at  B,  or  with  some  dangerous 
aitacb  him,  and  then  B  draws,  and 
ki,  and  A  kilb  B ;  there,  though  there 
isrel  npOD  abusive  language,  and  there 
crvirdt  a  mutual  figlitiug,  yet  since 
fai  B  with  a  weapon  or  instrument, 
■gll  haf e  taken  au  ay  B's  lite,  though 
■^afterwards,  that*will  be  murder. 
iiiwu  agreed  by  all  the  judges  in  tbe 


fcrtbe  argument's  sake,  and  it  is  only 
HKDt'siake,  and  to  give  the  objection 
}j  Ike  counsel  for  the  prisoner  its  full 
if  ii  shuuld  be  looked  on  here,  that 
kmd  io  the  former  part  of  the  verdict 
■  a  turideo  quarrel,  and  only  the  effect 
Bi;  yet,  if  it  appears  upon  the  special 
ibt  Ibere  was  a  sufficient  time  jior  this 

•  eool,  and  for  reason  to  get  the  better 
mport  of  passion,  and  the  subsequent 
r  deliberate,  before  the  mortal  wound 
ikillJiigof  the  deceased  will  lie  murder. 
dufjiMges  were  of  opinion,  that,  upon 
ioB  of  the  facts  found,  it  appeared, 
hesn  sufficient  time  for  Mr.  Oueby's 
rf  pasition  to  cool,*  and  that  he  bad 
I;  and  that  the  killing  of  Mr.  Gower 
boiie  act,  and  the  result  of  malice 
J  bad  conceived    against  the  de- 

wf  1  nsentlon  their  reasons,  I  must 
this  proposition,  to  which  they  all 
!.  that  the  Court  are  judges  of  tbe 
i  not  tbe  j  iry ;  and  that  the  Court 
dges  upon  the  facts  found  by  the 
ler  if  the  quarrel  was  sodden,  there 
Tibe  pasMuii  to  cool,  or  whether  the 
iberate  or  not. 

le  trial  of  the  indictment,  the  judtre 
jury  thus.f  If  you  believe  such 
witnesses,  who  have  sworn  such 
acts,  the  killing  the  deceased  was 

*  prepense  express,  or  it  was  with 
ied,  and^  then  ^ou  on^^ht  to  find  the 
ilty  of  murder;  but  if  }ou  do  not 
ie  witnesses,  then  you  ought  to  find 
of  roan^^lallghter  only  ;  uiid  so  ac- 
he nature  of  the  case,  if  you  }>elievc 
uch  facts,  the  act  \)ns  dohhcrute, 
erate  ;  and  then  you  ou'^ht  to  find 

And  the  jury  may,  if  they  thiuk 
'e  a  general  verdict,  either  that 
r  is  (rnilty  of  murder,  or  of  inan- 
But  if  they  decline  giving  a  general 
i  wjU  tiod  the  farts  specially,  the 
form  their  judginf^ut  from  the  tacts 
•ther  tliere  was  malice  or  not,  or 
e  fact  was  done  on  a  sudden  trans- 
ioBy  or  was  an  act  of  dehbcralion,  or 


ach'a  Hawkins's  Pleas  of  the  Crown, 

Lbl.s.  S2. 
I,  see  the  judgment  of  Lawrence, 
le  of  Dftriufbire  v.  Parker,  0  l^ajit  ^. 
VIL 


Attliougb  there  are  many  special  vierdicts  in 
indictments  for  murder,  there  never  was  one^ 
where  the  jury  find  in  express  terms  thai 
the  act  was  done  with  malice,  or  was  nol 
done  with  malice  prepense;  or  that  it  was 
done  uiion  a  sudden  quarrel,  and  in  trans* 
port  of  passion  ;  or  that  the  passion  %vae 
cooletl  or  not  cooled ;  or  that  the  act  was  de- 
liberate, or  not  deliberate :  but  the  collection  of 
those  things  from  the  facts  found,  is  lefl  to  tbe 
judgment  of  the  Court.  Hollo  way's  case« 
Palm.  545.  Cro.  Car.  131.  W.  Jones  198w 
So  in  the  case  cited  by  the  counsel  for  the  pri- 
soner, Cro.  J  ac.  1296,  tlowley's  case,  the  jury 
find  tiie  fact,  but  don't  find  in  express  termS| 
tliat  the  father,  whose  child  was  beat,  killed  the 
other  child  in  a  sudden  heat  of  passion ;  but  that 
was  left  to  the  judgment  of  the  Court,  upon  tht 
particular  facts  found. 

But  then  it  is  objected,  that  the  law  liai 
fixed  no  time,  in  which  the  passion  must  ba 
supposed  to  be  cooled,  it  is  very  true,  it  hav 
not,  nor  could  it,  because  passions  in  some  per* 
sons  are  stronger,  and  their  judgrroents  weaker^ 
than  in  others ;  and  by  consequence  it  will  re- 
quire a  longer  time  in  some,  for  reason  to  get 
tne  better  of  their  passions,  than  in  others :  but 
that  must  depend  upon  the  facts,  which  shew 
whether  the  person  has  deliberated  or  not ;  for 
acts  of  deliberation  will  make  it  appear  whe- 
ther that  violent  transport  of  passion  was  cooled 
or  no. 

But  thus  far  the  resolution  of  the  judget 
have  already  gone ;  and  it  has  been  adjudged^ 
that  if  two  tali  out  upon  a  sudden,  and  thoy  ap- 
point to  fight  next  day,  that  the  passion  by 
that  time  must  he  looked  on  to  be  cooled  ;  and 
in  suoh  casey  if  they  meet  next  dn}',  and  fight, 
and  the  one  kills  the  other  at  that  meeting,  it 
has  been  often  held  to  he  murder.  Hale  P.  C. 
48. 

To  go  a  little  farther.  If  two  men  fall  out 
in  the  morning,  and  meet  and  fight  in  the  af- 
ternoon, and  one  of  them  is  slain,  this  is  niur> 
der ;  for  there  was  time  to  nlluy  the  iioat,  and 
their  noeeting  is  of  malice.  So  is  Loggia  case, 
Kelynge  27. 

At  the  meeting  of  all  the  judges,  before  lord 
Morley'b*  Trial  by  the  i>ecr8,  for  the  murder  of 
one  Hastings,  they  all  agreed,  that  if  upon 
words  two  men  grow  to  anger,  and  atlerwards 
they  suppress  that  anger,  and  thru  fall  into 
other  discourse,  or  have  other  diversions,  for 
such  a  reasonable  space  of  time  a  J  in  reasonable 
intendment  their  heat  might  be  cooled  ;  and 
some  time  after  they  draw  upon  one  another, 
and  tight,  and  one  of  them  is  killed  ;  this  is 
niurdtr,  because  being  attended  with  such  cir- 
cumstances, it  is  reasonably  aupposed  to  be  a 
deliberate  act,  and  a  premeditated  revenge  ufion 
tbe  first  quarrel.  But  the  circumstances  of 
such  an  act  being  matter  of  fact,  the  jury  are 
judges  of  them,  Kelynge  56.  The  ineanins-  of 
which  last  words  is,*<hat  the  jury  are  judges  of 
the  facts,  from  which  those  circumstances  are 


mm 


•w«a«*a<w 


£ 


*  SceVyi.o,  p.  vry. 


51] 


If  GEORGC  I. 


eollecfeil.  But,  ai  I  nid  before,  wlfcn  Hioie 
Acts  are  foomi,  the  Court  n  to  jodge  from 
them,  whether  they  do  not  sbeir  the  act  was 
deliberate  or  not. 

liOrd  Mnrley  upon  his  trial  by  the  peers 
was  acquitted  ;  and  aAer  that,  \n  Easter  terra, 
18  Car.  2,  Broomwich,  who  was  indicted  as  a 
priucipal,  in  being  present,  aiding,  and  abetting^ 
lord  Moriey,  in  the  murder  of  Hasting,  was 
tried  at  the  Ring's-bench  bar.  The  quarrel 
was  at  a  taTem ;  but  it  was  proved,  when  the 
quarrel  was  at  the  tavern,  that  lord  Morley 
said,  if  we  fight  at  this  time,  I  shall  have  a 
disadvatitage,  by  reason  of  the  height  of  my 
shoes ;  and  presently  afler  they  went  into  the 
fielrfs,  and  fooffbt ;  lord  Noriey  killed  Hast- 
infB  :  hot  while  they  were  fighting,  Broom- 
wich made  a  thnist  at  Hasting^  and  lord  Mor- 
ley closed  in  with  Hastings,  and  killed  him ; 
and  (siEiys  the  book)  this  was  held  as  clear  evi- 
dence of  their  intention  to  fight,  when  they 
went  out  of  tlie  taveni ;  and  the  quarrel  being 
only  about  words,  and  fighting  in  a  little  time 
after,  it  was  held  nurder  by  all  the  Court.  And 
there  need  not  be  a  night's  time  between  the 
quarrel  and  the  fighting,  to  make  it  murder, 
but  such  time  only,  as  it  may  appear  not  to  be 
done  on  the  first  passion;  for  loro  Morley  con- 
iidered  the  disadvantage  of  his  shoes ;  and  the 
Court  directed  the  jury  that  it  was  murder  in 
Broomwich,  beinff  present,  and  aiding;  but 
the  jury  acquitted  him.  1  Sid.  277,  reports 
the  same  case,  and  say^,  that  the  Court,  in  the 
direction  to  the  jury,  laid  it  down,  that  after  the 
provocation  in  the  house,  they  say,  this  is  no 
convenient  place  (and  so  have  reason  to  judge 
of  conveniency),  and  appoint  another  place, 
tliougli  the  finrlit  is  to  be  presently :  this  b 
murder,  for  uie  circumstances  shew  their 
temper. 

In  ri.  P.  C.  48,  if  A  and  R  fall  out,  A  says 
lie  will  not  strike,  but  will  give  B  a  pot  of  ale 
to  t<mcli  him,  B  strikes,  A  kills  him ;   murder. 

Two  quarrel ;  the  one  savs,  if  you'll  go  into 
the  field,  I  will  break  your  head,  aud  there  one 
lulls  the  other  ;  murder.  Crompt.  95,  p.  49. 
Two  fall  out  on  a  sudden  in  the  town,  and  they 
%y  agreement  go  into  the  field  presently,  and 
one  kills  the  other ;  murder.  Crompt.  23,  fol. 
SI. 

From  these  cases  it  appears,  that  though  the 
law  of  England  is  so  far  peculiarly  favourable 
(I  use  the  word  peculiarly,  because  I  know  bo 
other  law  that  makes  sudi  a  distinction  between 
murder  and  manslaughter),  as  to  permit  the 
excess  of  anger  and  passion  (which  a  man 
ought  to  keep  under,  and  govern)  in  some  in- 
stances to  extenuate  the  greatest  of  private  in- 
juries, as  the  taking  away  a  man's  life  is ;  yet 
iu  tliuse  cases,  it  must  be  such  a  passion,  as  fbr 
the  time  deprives  him  of  his  reasoning  facul- 
ties; fur  if  it  appears  reason  has  resumed  its 
office ;  if  it  ap|iears,  he  reflects,  deliberates,  and 
considers,  liefore  be  gives  the  fatal  stroke, 
which  cannot  be,  as  long  as  the  fury  of  passion 
continues;  thekiw  will  nojonger,  under  that 
pretext  of  pasiiou,  exempt  him  from  the  pu- 


IVJU  tfMaj&F  Oiufyt 

mhnient,  which  fhmi  tlie  greatne«  o 
injury  and  heinoasnesa  of  the  crime  be  . 
deserves,  so  as  to  lessen  it  from  murder  to 
slaughter.  Let  us  see,  therefore,  whether 
this  special  verdict  it  appears  that  the  fis 
and  killing  Mr.  Gower  was  only  done  \i 
of  {lassion,  or  was  a  deliberate  act.  By 
I  obeerved  before,  it  plainly  appears  it  was 
liberate  act.  But  to  recapitnhite  in  short ; 
the  words  had  passed,  and  the  bottle  wastt 
by  the  prisoner ;  and  swords  drawn  ;  b 
interposition  of  friends  they  sat  down,  an<! 
tinned  in  company  for  an  hour  (a  ream 
time  under  those  circumstances  for  the  pi 
to  cool) ;  and  afler  that  hour  expired,  tl 
ceased  says.  We  have  bad  hot  words,  bu 
was  the  aggressor ;  but,  I  think  we  ma] 
it  over ;  aud  at  the  same  time  offered  hii 
to  the  prisoner,  which  was  enough  to  hai 
peased  the  prisoner :  To  this  Mr.  Oneb; 
swered,  No,  thimn  you,  I'll  have  your  i 
words  expressing  malice,  not  passion  :  ' 
when  the  company  went  out  of  the  root 
prisoner  stayed,  and  called  the  deceased  I 
Young  man,  come  back,  1  have  somethi 
say  to  yon :  The  door  immediately  was 
clashing  of  swords  was  heard,  and  the  dec 
received  the  morul  woand  from  the  priso 
the  bar.  The  prisoner's  words  shew,  wbi 
his  intention,  vis.  to  take  away  Mr.  Oc 
life ;  and  the  kilNiig  htm  may  properiy  b 
to  have  been  done  upon  deliberation  anil 
sideration. 

The  counsel  for  the  prisoner  in  their 
ments  insisted,  that  there  were  severs 
cumstances  found  in  the  special  verdict  i 
vour  of  the  prisorier,  which  were  a  foun< 
fbr  the  Court,  to  construe  the  other  expre 
to  be  ofdy  words  of  heat ;  and  that  what  I 
was  in  the  heat  of  his  first  passion,  whic 
never  cooled,  and  not  out  of  malice. 
It  is  found,  that  at  the  breaking  up  of  the 
pany,  Mr.  Ooeby  had  his  great  coat  tl 
over  his  shoulders ;  from  whence  it  woi 
a  strain,  to  think  he  then  intended  to  figh 
Mr.  Gower.  2.  It  might  be  Mr.  Gowe 
shut  the  door,  who  came  back  after  he  wi 
of  the  room,  the  jury  not  having  fbun4 
shut  the  door.  S.  That  it  was  found, 
was  no  reconciliation  between  them,  froi 
throwing  the  bottle  at  Mr.  Gower.  Bui 
the  first  of  these  objections,  considerin 
words  the  prisoner  used  after  this,  and  aft 
deceased  was  out  of  the  room,  and  what  f« 
ed,  since  the  jury  have  found  this  fact,  wi 
saying  any  more  about  it,  the  natural 
striiction  is,  that  this  was  only  used  by  th 
soner  as  a  blind  to  the  company,  to  oc 
from  them  his  real  intention,  till  they 
gone  out  of  the  room.  As  to  thesecoD 
stands  ouoertain  upon  the  verdict ;  hot  .il 
uncertainty  which  can  have  no  influence 
the  present  determination ;  for  if  Mr.  C 
bad  shut  the  door,  that  would  not  akme 
materially  altered  the  case.  As  to  the  t 
since  express  malice  before  appeared  to 
the  prisoacTi  the^mting  thai  net  doei  m 


far  thg  Shurier  »f  WSliam  Cower. 


A.  D.  179S> 


[^ 


M  A«  fint  beat  of  pamoD  continued 
rtlhat  the  maliGe  onolioiMd. 
counsel  for  Mr.  Ooeby  farther  objecteJ, 
Mared  there  was  a  motual  fitfiiting 
K«er  was  shot ;  for  it  is  fband  Uiat  he 
id  Area  slieiit  wounds ;  tlien  it  is  not 
.ibdrew  first,  or  made  the  first  assault, 
ktktr  was  ahut ;  and  it  was  possihte  a 
■Ha  <|aarrel  might  then  rise,  in  which 
tor  Bjffbt  be  the  aggressor,  and  there- 
jafedsT  verdict  was  uncertain  in  a  ma- 
pal.  The  answer  to  which  is,  what  is 
ilq^'s  Case,  Kelynge  S7,  cited  before ; 
'4UlsB,  and  do  sudden  qusrrel  ap- 
iiiaarder ;  lor  it  lies  on  the  iiartv  in- 
)to^Te the8uddeni|uarrcl;  audtnere- 
ijay  not  baTiug  found  anv  such  thing 
!piNoer'a  bvncnt,  it  is  to  be  took  there 
taeh.  This  u  said,  supposing  the  latter 
itrerdict  could  be  considered,  without 
iif  the  fimner  part  of  it :  and  that  when 
f|M]r  went  out  of  the  room,  the  nrtsoner 
bGowct  wcflereoanciled.  But  however 
%ht  have  been,  b«ne  it  appears  there 
wcsnrilialifin,  and  therefore  there  can 
Bigination  of  a  new,  original  quarrel  in 
■sfter  the  door  was  shut.  And  as  to 
fk  wounds  the  prisoner  received,  that  is 
nd;  Ibrhe  having  malice  against  Mr. 
(IbDugh  there  was  mutual  figbting,  and 
wer  was  wounded,  yet,  when  he  killed 
»cr,  it  will  be  OMirdcs'. 
ba  Act  in  the  special  verdict,  which 
U  on,  was,  when  Mr.  Gower  was  ask- 
iIm  destb4»ed,  whether  be  had  received 
■di  in  a  manner  among  swordsmen 
Vr?  He  answered,  1  think  I  did ; 
^  Ike  deceased  shewed,  he  was  satisfied 
Asa  fair.  The  answer  to  which  is 
'  A«  if  A  have  malice  against  B,  and 
■Mud  fight,  though  the  fight  is  never 
'Mrding  to  the  law  of  arms,  yet  if  A 
Jtvill  be  murder. 

SKs  the  counsel  for  theprisoner  princi- 
died  on  to  make  this  fact  only  man- 
V,  were  Rowley's  Case,  13  Coke  87 ; 
ner's  Case,  Comberbatch,  407,  8. 

13  Coke  87,  the  case  was,  that  two 
bting  tog^her,  the  one  of  them  was 
d  in  the  fiMse,  and  he  bled  a  great  deal 
•e ;  and  so  he  ran  three-quarters  of  a 
lis  fkxhetf  who  seeing  him  very  bloody, 
bis  hand  a  cudgel,  and  went  three- 
of  a  mile  to  the  other  boy,  and  struck 
D  the  head,  upon  which  he  died,  aud  it 

bat  manslaughter,  for  the  passion  of 
r  cnntioned.    And  there  is  no  time, 

law  can  determine,  that  it  was  so 
bat  it  ahould  be  adjudge)!  malice  pre- 
(Note,  Theae  are  the  words  of  is  Coke 

ieh  the  answer  is  plain,  for  the  reaaon 
Cro.  4ac.  396,  which  is  the  same  case, 
fiuher  having  no  anger  before,  but 
dvoked  upon  Uie  complaint  and  sight 
m'a  blood,  and  in  that  anger  beating 
vUsh  Im  died,  the  Uw  Mi^m^C^  ^  ^ 


be  u|u>n  that  sudden  passion.  But  that  is,  coi:* 
sideriagwliat  has  been  said  before,  clearly  dis- 
tinguishable from  the  present  case ;  besides  it 
may  be  added,  it  was  but  a  little  cudgrl  he 
struck  with,  from  which  no  such  fatal  etent 
could  be  reamnably  expected.* 

Turner's  Case  was  this ;  his  wife  complain- 
ed the  boy  had  not  cleaned  her  ck)gs.  upon 
which  Mr.  Turner  took  up  a  clog,  and  struck 
him  on  the  head,  and  killed  him ;  and  though 
there  was  no  oilier  provocation,  it  was  hehl 
only  manslaughter.  But  the  reason  of  that 
was,  because  the  cloff  was  so  small,  there 
could  be  no  design  to  uoany  great  harm  to  tiie 
boy,  much  less  to  kill  him;  and  a  master  may 
correct  a  servant  in  a  reasonable  manner  for  a 
fault.  And  lord  chid" justice  Holt,  in  Comber- 
balcb  408,  says,  that  iu  that  case,  it  was  an  un- 
likely thing,  meaning,  tiiat  the  dcjg  should  kill 
the  boy.  The  counsel  for  the  prisoner,  bein^ 
apprehensive  of  the  authority  of  Mawgridge's 
C-ase,  besides  the  observationa  they  had  made, 
mentioned  before,  to  induce  the  Court  to  look 
upon  that  judgment,  as  not  warranted  by  law, 
endeavoured  to  distinguish  the  present  case  from 
it,  supposing  it  io  be  Taw.  And  lit,  They  said, 
that  in  Mawgridge's  Case,  the  bottle  hit  Mr. 
Cope,  and  stuimed  him  ;  but  here  the  bottle  did 
not  hit  Mr.  Gower,  but  only  brushed  some 
powder  out  of  his  peruke.  3dly,  in  Maw- 
gridge's  Case,  the  bottle  was  full  of  wine ;  here 
it  is  not  found  to  bsve  been  so,  and  therefore 
must  be  took  to  have  been  empty  ;  and  the  size 
of  the  bottle  does  not  appear,  it  might  be  very 
small.  Sdly,  Mawgridge  drew  his  sword  im- 
mediately aller  throwing  the  bottle,  without  in- 
termission ;  here  Mr.  Gower^s  sword  was  first 
drawn.  4thly,  Mr.  Cope  nerer  drew  ;  here 
Mr.  Gower  not  only  drew  the  first,  hut  clashing 
of  swords  were  beard,  so  there  must  have  been 
fighting. 

It  is  very  true  (so  far  as  these  facts  will  make 
a  difference)  this  present  case  is  diKtinguishable 
from  Mawgridge's  Case ;    for  that  case  was 
determined  only  upon  an  implied  malice  (hut, 
as  I  said  before,  was  very  rightly  and  justly 
determined,  as  we  all  agreed),  for  strictly  and 
properly  speaking,  altlioiigh  the  word  exprew- 
malice  is  mentioned  io  the  reasons  given  for 
that  resolution,  yet  it  was  but  mahce  implied. 
But  still  this  way  of  distinguishinjr  the  present 
case  from  Mawgridge's,  will  lie ol  no  seryiceto 
the  prisoner,  because,  though  all  the  juclg*a 
heldUiis  case  was  distinguishable  from  Maw, 
gridge's  Case ;  it  was  in  respect  that  t^^^is  «  a» 
a  much  stronger  case  a.  to  the  '"""ler   th* 
jury  having  foundfiicts  which  •»J'^?. J^^'^Vj^^Jy 
U  an  expn.»  inalic^  ags.ns^  M-  ^C-wer 

Upon  the  ^^«!«  ™»"/^r\||^^^^^ 

concurrent  op""«n  f  •"  ^J^^ba^,  John  One! 

•  Vide  Foster's  lUporU,  p.  W4,  Rowle^-^ 
CMe. 


tff]  19  GEORGE  I. 

fkctioD,  but  tl  •DDther  time  and  place  lie  irniild 
be  reuily  lo  gire  it  to  him,  ind  in  the  mean  time 
dciiral  faim  to  be  more  civil,  or  to  leave  the 
csmpany :  tbereupon  Jobn  Mawgriilge  rose 
vp,  and  waa  goio^  out  of  the  ruom ;  bdiI  to  (;o- 
log,  did  (uililenly  suatcli  up  a  glasi  boille  lull 
oTwiDe  tUen  rtaiiding  upoo  the  table,  and  lio- 
Imtly  tlirew  it  at  him,  tlie  said  Mr.  Cope,  aiid 
therewith  ctrucL  him  upon  the  head,  and  im- 
mediately thereupon,  wiUiout  any  iDlermiiEi<»i, 
drew  his  ■word,  and  Ihriut  bim  into  the  led 

Ert  lit'  hit  breast,  orer  the  arm  of  one  Robert 
irtit),  nut»ith standi D[r  the  tudearour  Uied 
by  the  caiil  Martin  to  hiader  Uawgridse  firam 
killing  Mr.  Cope,  and  gave  Mr,  Cope  the 
wouod  in  the  iudiciment  meDtioned,  whereof 
beiniitantly  dieil.  Butthejnry  dofurtheraajr, 
tfaat  iuimcdialelv,  in  a  little  apace  of  time,  be- 
Iween  Mawgriii^e's  dniwiu<r  hii  anord,  and 
tiie  giving  tlie  mortal  wound  by  him,  Mr.  Cope 
did  ante  from  his  chair  where  he  sat,  and  took 
Mwther  bottle  that  then  atood  upon  the  table, 
and  ihrcw  ii  at  Slawgridge,  whicn  did  hit  and 
break  hit  head  ;  that  Mr.  Cope  bad  do  iword 
in  hit  haod  drawn  all  the  while;  and  that 
•(ter  Mawgridge  had  throirn  the  bottle,  Mr. 
Cope  tpake  not.  And  whctlier  Ihii  be  murder 
fir  mautlaugbter,  the  jury  pray  the  advice  of 
the  Court. 

A  day  being  appointed  fmr  the  retnlulion  of 
die  Court,  and  the  maralial  required  to  bring 
the  pritouer  to  the  bar,  returard  he  wai  e*- 
ctped  ;  which  being  recorded, the  Chief  Juttice 
(Holt)  gave  the  opinion  of  the  judgea  in  this 
manner ; 

Tbia  Record  being  remored  into  Ihii  Court, 
thecaae  haiii  been  argued  before  all  the  judge*; 
■nd  all  of  ut,  except  ray  lord  chief  juttit'e  Tn- 
-VOr,  arc  of  opiuiua  that  Mawgridge  it  guilty  of 
murder. 

Tliia  hath  been  a  cate  of  great  expectation. 

This  ditlinction  between  murder  and  man- 
■taujfhler  only,  is  occasiuDed  by  the  ttatate  of 
13  H .  7,  and  other  itatutet  that  took  away  the 
benefit  of  clergy  from  murder  committed  by 
mah'ce  prcpeuKd,  whiuh  tlatuiea  have  been  ttic 
DccatioD  ol  many  uire  tpeculatiops. 

The  word  "  murder"  i*  known  to  be  a  tern 
•r  a  deatriplion  of  boinicide  committed  in  the 
WOrat  manucr,  which  is  no  where  vied  but  in 
thit  itland,  tud  it  a  word  framed  by  our  Saxon 
•ncavtoraiu  ibereignof  Canutus  upun  a  pai  lieu- 
lar  occasion,  which  appears  by  an  uncontuited 
■nthorily,  Lamb.  HI.  In  the  laws  of  Edward 
the  Oonleatur :  "  Murdra  qiiidem  ioventa  fuC' 
>unt  in  diebus  Canuli  *  lUgit,  qui  pott  acqni- 


*  But  according  lo  lord  Fortescua;  "  Mnr- 
der  ii  a  Saxon  woni,  and  to  be  fbuud  in  several 
placea  in  the  aticienl  Haxoii  laws ;  and  it  of  a 
lery  aucieol  dale,  ptabably  at  old  ts  tbp  Haion 
tongue  itself,  which  it  alioul  600  yeart  older 
than  Canutut't  time.  We  frequently  in  Saxon 
aulhsra  find  the  worda  ■orttw-,  narthtr,  war- 
Mar,  vnilbsT  or  mvdar ;  Bud  tbafe  coma  from 
Ike  BDciaiil  Buon  ward  mertk ;   which  ligsi- 


3Via/  of  Major  Oiubif— 
aitam  Aogllam  et  pacificatam,  rofnto  I 
An',rliK:  TEmisit  in  Uaciam  exercilum 
Tbereupon  a  law  was  made.  That  ifai 
Itthman  ahould  kill  any  of  the  Danes  thi 
leli  behind,  jf  he  were  apprehended,  b 
be  bound  to  underijio  the  ordeal  trial 
himself;    and  if  the  murderer  were  n 

in  eight  davi,  and  alter  that  a  mii 
given,  ilien  if  be  could  nut  be  found, 
ihould  pay  46  marks,  which  if  not  abb 
it  ahonld  he  levied  upon  the  huiulied, 
ion,  130,  agrees  with  this  account. 

Tlioufih  this  law  cea*ed  upon  llie  ( 
of  tbe  Danes,  yet  William  the  Cooqt 
vived  it  for  the  aecnrity  of  hit  Normac 
peara  by  Ids  laws,  after  he  had  contira 
Edward  the  Coiifessor'B  laws.    And  I 

'  primo  regoi,  afterwards  by  hia 
appears  iu  tbe  addition  to  l.an)bc-rt)esl 
"That  if  a  man  be  found  slain,  he  a! 
taken  to  be  a  Freucliman,  if  it  was  ni 
tliat  he  waa  an  Englishoiui,  and  the 
waa  bound  to  euquire,  whether  Ibe  pet 
waa  an  EnglishmanoraFrcachman." 
inquisitions  were  taken  before  the  f:on 
returned  to  thejiittices  io  eyre,  and  if 
found  him  an  Englishman,  then  the 
waa  tn  be  discharged,  which  low  w: 
Englisbire,  and  the  justicea  in  eyre  \ 
bound  to  enquire  thereof,  until  the  stat 
E.  3,  which,  aa  it  is  mentioued  in  ii 
waa  abolished. 

Ilcrehy  a  mistake  npon  the  statute  < 
bridge  it  rectified,  which  it  cap.  36. 
drum  de  octero  non  adjudicatur  coran 
nriis,  ubi  per  infortunium  adjudicatun 
locuru  habeat  murdrum  de  ioterfect 
loniam  tanlum,  et  non  aliter."  This 
made  upon  a  supposition  that  he  tlmt  I 
person  alaiu  by  misfortune  should  ba 
but  only  to  explain,  or  rather  to  take  c 
gour  of  the  Canqiieror*t  law,  that  ilu 
should  not  be  couipelled  to  find  out  t 
slayer ;  or  if  he  were  found  out,  lie  ah 
undergo  the  penalty  of  that  law.  F< 
taw  ttood,  or  was  interpreted  before  i 
lute,  if  a  man  was  found  to  lie  slain,  it 
ways  inteuded,  1.  That  he  was  a  Ftc 
3.  That  he  was  killed  by  an  Eoxlishi 
That  killing  was  mutdtr.  4.  II' any 
apprehended  to  be  the  murdcnr,  be  i 
tried  by  fire  and  water,  though  he  ki 
liy  misfortune ;  which  was  exicndet 
raacon  and  jutticc  in  favour  of  the  M 


fie*  a  Tuilent  death,  or  sudden  destriic 
SDmelimes  significt  murder,in  the  prcs 
ofourcoinmoD  lawyers.  From  hem 
thf  barbarous  Idtin  term  wurJruM  | 
drum,  and  tba  vedjs  mordraiv,  nurd 
mordidrare  ;  which  arc  of  much  gre: 
quily  than  king  Canutut,  who  began 
but  m  lOlS.  Now  give  ne  leave  lo 
the  true  derivation  of  eur  word  m 
wb«^  I  Ihi^  maniftatly  cquuh  frooi 
morti  itn."  f onmow  iJaw'a  Pt«£ 
lUperti. 


MmKgridge^s  Cote* 

SMitttfi  frwkillfld  by  oiitforMM, 
bim  wai  not  m  danger  of  death, 
vai  DDt  M&tj,  For.  Mitb  Bncton 
e  Ibe  bltef  «ld  of  If .  S,)  fol.  1S6, 
Ufleib  a  man  by  mndbrtaDe,  nM  to 
fed."    5.  Iflheittalieraetor  was  not 

■  tbtf  csMRitTy  fi^aa  to  be  anicTMd, 
b  itatato  of  MaiMridffe,  if  it  was 
tf  dw  peraoB  alaiD  was  d  rreachitaaii, 
M 1^  mialbrloiip,  then  tho  onuntry 
I  be  amerced  if  the  mnnslayeir  was 
;  m  if  he  were  tafceti,  be  should  not 
his  ordeal  trial.  This  seems  to  be 
■sning  of  that  statata. 

Bsadly,  it  will  appcartoa  demonstra- 
kfbre  that  afatnte,  be  that  killed  an 

■  '  tier  infbrtaDinm '  was  never  in 
r  of  death  ;  for  tbb  slatme  of  Marie- 
s  made  59  R.  S.  The  statnte  of 
tarta  waa  consummate  9  fl.  S,  and 
IPS,  **  That  every  one  iwsprisoncd  ftit 
rf  a  maai,  and  riot  thereof  indicted, 
i|;ht  iHirsae  the  writ  DeOdio  et  Atia ; 
ns  roond  that  the  person  imprisoned 
I  *  se  defcndendo,'  or  *  per  infor- 
Btd  not  '  per  f^loniam,'  then  he  was 
i."  Wfaieb  shews  that  he  was  not 
sf  death  ;  for  if  he  had,  he  would  not 
let  to  bail, «  Inst.  42. 

1  bare  ^veo  a  true  aeconnt  of  the 
ke  word  M  order,  what  it  w«i  when 
e  time  of  Caniftbs)  a  Dane,  and  since 
a  the  Confjueror)  when  a  Frenchman 
I;  for,  as  it  was  then  sniiposed  in  the 
^snntns,  the  Kn<;1ishmen  hated  ihe 
•D  the  account  of  thrir  nation  thst 
iritbem,  and  would  u{K)n  all  orra- 
ktbeir  de^truriinn,  as  thr>y  did  of  a 
lUe  Dumber  of  them  in  the  time  of 
li Ike  Saxon  kin«r  ihnt  )trrrciled  Cai^n- 
veone;  so  tiie  (-oni|U«'ior  bad  the 
■i  to  suspect  the  safety  of  his  Nor- 

ads,  as  sppeara  hy  the  Confrssor's 
Bb.  141,  the  secret  or  iDKidious  killing 
m  as  well  as  a  foreigner  was  declared 
der.  Bracton,  ISO,  134,  155.  Mur- 
H  de6ffed,  *'  Est  occulta  homiiium 
m  et  fiotorum  occisio  matiu  hominuin 
frpetrata."  With  which  agrees  the 
books  of  Britton  and  Ffcta :  only  in 
brrigner  it  was  penal  to  the  country ; 
itive. 

niay  be  necessary  to  shew  what  was 
rstrKMl  by  Homicide  or  Manslanj^hter. 
'23,  mentions  the  worst  {tart  iif  it, 

vulantary  liomicide,  defined  in  this 
*  Si  quis  cx  cert  a  Rcientift  ct  in  a«isul- 
litato,  ira,  vol  odio,  vrl  causd  lucri, 
.  in  felonift,  ac  contra  pacem  Dominr 
lem  interfecpfit :"  if  one  knowinely, 
fomeditateil  a<)«aiili,  by  an^er  or  ha- 
'  hicre-sake,  should  kill  another,  this 
inted  maoslau^jrhter ;  if  it  be  done 
'  saith  Bracton,  it  is  ftmrder :  that 
e  difference  there  was  between  the 
s  otfaer: 


A.D.  1706. 


[69 


It  appearb,  that  sinee  that  of  Bracton  the  no* 
tioA  of  moider  is  much  altered,  and  coropre« 
bends  all  homicides,  whether  privately  or  pub* 
licly  committed,  if  done  by  nsalice  prepensed. 
With  this  airreea  Stam.  PI.  Cor.  18  b.  <<  At 
this  day  (saitb  he^  a  man  may  define  murder  in 
another  manner  ttian  it  ia  defined  by  Bracton^ 
Britton  and  Fleta :  If  any  one  of  malice  pre- 
pensed, doth  kill  another,  be  he  Enfflishman  or 
foreigner,  if  secretly  or  publicly,  tnat  is  mur- 
der: this  waa  the  definition  long  before  the 
making  of  the  slatntea  of  4  and  S3  H.  8,  and 
the  other  statntes  that  took  away  clergy."  To 
define  murder,  there  must  be  mafitidprsteogitatd^ 
as  also  murdravit :  so  that  if  an  indictment  ho 
thai  the  party  muiHlravitf  and  not  ex  malitU 
pracogitatA^  it  is  but  manslaughter,  Yel.  204. 
2  Cm.  98S.  1  Bid.  141,  Bradly  and  Banks.  So 
if  it  be  ejr  mnlUiS  pr^teogitaiAf  omitting  mar- 
drarity  it  is  but  manslaughter.  Dyer  S61.  PI. 
Sd->d04.  PI.  56.  Vide  Stat.  10  £.  S,  cap.  2. 
The  parliament  complained  that  mnrderers, 
&o.  Were  encooraged  to  offend,  because  nardona 
of  manstanghtefs  were  granted  ao  easily  ;  tha 
act  therefore  prohibits  the  ^nting  thereof. 
13  R.  9,  recites  the  same  mischief,  and  great 
damage  by  treasons,  mnrdera,  &c.  because  par^ 
dons  have  been  aasily  granted :  therefore  tha 
act  doth  provide,  *<  That  if  a  charter  for  tlia 
death  of  a  man  be  alleged  before  any  justice, 
in  which  charter  it  is  not  specified  that  he  of 
whose  death  any  such  is  arraigned  was  mur- 
dered or  slain  by  await,  assault  or  malice  pre* 
penscd,  it  shall  be  enquired,  whether  he  was 
murdered  or  slain  by  assault,  await,  or  malicd 
pre|)ensed ;  and  if  it  be  so  found,  the  charter  of 
pardon  shall  be  disallowed.'*  This  is  a  plain 
description  of  murder,  as  it  was  taken  to  he 
according  to  the  common  understanding  of 
men. 

Ever  since  the  killing  of  a  man  by  assault  of 
malice  prepensed  hath  been  allowed  to  he  mur- 
der, and  to  com  prebend  the  other  two  instances. 
Bnt  Ivecanse  that  way  of  killing  hy  poison  did 
not  come  under  the  ancient  definition  of  Brac-« 
ton,  (^c.  which  is  said  to  be  manu  hominumper* 
ptlrnta^  or  of  this  statute  of  13  R.  S.  There'* 
fore  by  the  statute  of  1  E.  6,  c.  13,  it  was  en- 
acted, *'  That  wilful  poisoning  of  any  person 
should  be  accounted  wilful  murder  of  malice 
prepensed." 

One  thing  more  is  fit  to  be  observed,  that  in 
all  indictments  for  murder  a  man  is  not  charged 
positively,  that  he  did  murder  the  person  slain, 
hnt  that  he  '  ex  malitift  prsBCOgital^.  in  ipsum 
'  inKultiim  fecit,  ac  cum  quoilam  gladio,'  he 
gave  him  a  wound  whereof  bed ie<l :  *  Et  sic  ex 
*  maliti^  pra:cogitatft  ipsum  murdravit,*  so  the 
mnrder  is  charged  upon  him  by  way  of  conclu- 
sion, and  as  a  consequence  from  the  antecedent 
matter  that  is  positively  alleged.  To  come 
close  to  a  state  of  the  present  qtiestion,  it  doth 
appear  that  Mawgridge  threw  the  bottle  at 
Mr.  Cope  without  any  provocation  given  to 
him  ;  for  the  diflercnce  was  betwren  him  and 
the  woman  that  was  there  in  com|tanv,  and  his 
bebaifiour  was  so  rude  and  dista^tcful'as  did  m* 


es] 


12  GE0B6E  I. 


duce  eaotain  Cope  to  desire  him  to  leave  the 
room,  wtiere  he  was  only  ajg^est  to  him,  and 
there  by  his  permission  ;  this  Cope  might  rea- 
sonably do,  which  could  be  no  cause  to  provoke 
Mawgridge  to  make  the  least  assault  upon 
him :  therefore  I  shall  maintain  these  three 
positions : 

1.  That  in  this  case  there  is  eamress  malice 
by  the  nature  and  manner  of  Mawgrid^e's 
throwing  the  bottle,  and  drawing  his  sword  im- 
mediately thereU])OD. 

S.  That  Mr.  Cope's  throwing  a  bottle  at 
Mawgridge,  whereby  he  was  hit  and  hurt 
before  he  gave  Mr.  Cope  the  mortal  wound, 
cannot  make  any  alteration  in  the  offence  by 
reducing  it  to  be  of  so  low  a  degree  as  man- 
slaughter. 

3.  1  shall  consider  what  is  such  a  provoca- 
tion, as  will  make  the  act  of  killing  to  be  but  a 
manslaughter  only. 

1.  Here  is  express  mah'ce,  that  appears  by 
the  nature  of  the  action.  Some  have  been  led 
into  a'roistake,  by  not  well  considering  what 
the  passion  of  malice  is  ;  they  have  construed 
it  to  be  a  rancour  of  mind  lodgetl  in  the  person 
kllliug,  for  some  considerable  time  before  the 
iM>mmission  of  the  fact,  which  is  a  mistake 
arising  from  the  not  well  distinguishing  be- 
tween hatred  and  malice.  Envy,  hatred,  and 
malice,  are  three  distinct  passions  of  the  mind. 

1st.  Envv  pro|)erly  is  a  repining,  or  being 
grieved  at  the  happiness  and  prosperity  of  an- 
other, *  Invidus  alterius  rebus  macrescit  opimis.' 

2dl3',  Hatred,  which  is  oc/ium,  is,  as  Tully 
•aith,  ira  inveterata^  a  rancour  fixed  and  settled 
in  the  mind  of  one  towards  another,  which  ad- 
mits of  several  deerees.  It  may  arrive  to  so 
high  a  degree,  and  may  carry  a  man  so  far  as 
to  wish  the  hurt  of  him,  though  not  to  perpe- 
trate it  himself. 

3(ily,  Malice  is  a  design  formed  of  doing 
miscliief  to  another;  'Cum  quis  dat&  opeiS 
'male  agit,'  he  that  designs  and  useth  the 
means  to  do  ill,  is  malicious,  2  Inst.  42.  Odium 
signifies  hatred,  atia  malice,  because  it  is  eager, 
aharp,  and  cruel.  He  that  doth  a  cruel  act  vo- 
luntarily, doth  it  of  malice  prepensed,  3  Inst.  62. 
By  the  statute  of  5  Hen.  4,  If  any  one  out  of 
malice  prepensed  shall  cut  out  the  tongue,  or  put 
out  the  eyes  of  another,  he  shall  incur  the  pain 
of  felony.  If  one  doth  such  a  mischief  on  a 
sudden,  that  is  malice  prepensed  ;  for,saith  mv 
hird  Coke,  **  If  it  be  voluntarily,  the  law  will 
imply  malice."  Therefore  when  a  man  shall, 
without  any  provocation,  stab  another  with  a 
dagger,  or  knock  out  his  brains  with  aliottle, 
this  is  express  malice,  for  he  designedly  and 
|iurposely  did  him  the  mischief.  This  is  such 
an  act  that  is  malicious  in  the  nature  of  the  act 
itself,  if  found  by  a  jury,  though  it  be  sudden, 
and  the  words  ex  malitH  pr^cogilatd  are  not  in 
the  verdict,  1  Cro.  131.  Ualloway's  case,  who 
was  woodward  of  Osterly-park,  in  Middlesex ; 
a  boy  came  there  to  cut  [steal]  wood,  whom  by 
obanoe  he  espying,  and  the  bov  being  upon  a 
tree,  he  immediately  calls  to  him  to  descend, 
whish  thf  boy  obeyingi  HaBoway  tiad  him  to 


Trial  of  Major  Xindf^-^ 

an  hone's  tail  with  a  oord  that  t] 
then  gave  him  two  blows,  the  hon 
and  brake  the  boy  *s  shoulder,  wher 
This  was  ruled  to  be  murder  by  ail 
and  barons,  except  justice  Huttoo 
doubted  thereof ;  and  that  was  a  si 
than  this  ;  for  there  was  some  kind 
tion  in  the  boy,  who  was  stealing  i 
the  park,  of  which  Halloway  hai 
and  it  cannot  be  reasonably  thouj 
designed  more  than  the  chastisemen 
and  the  horse  running  away  in  tl 
was  a  surprize  to  Halloway ;  yet  ii 
boy  did  not  resist  him,  his  tying 
horse's  tail  was  an  act  of  cruelty 
whereof  proving  so  fatal,  it  was  i 
be  malice  prefieused,  though  of  a  s 
in  the  heat  of  passion.  This  case 
in  Jones,  198.  Pal.  585.  And  t 
that  the  Court  could  determine  it  t 
prepensed  upon  the  special  ma 
Crompton  23.  Two  playing  at  ta 
in  their  same,  one  u|>on  a  suddc 
other  with  a  dagger :  this  was  held 
der  by  Bromley  at  Chester  assiz 
So  in  this  case,  if  the  bottle  bad  k\\\\ 
before  he  had  returned  the  bottle 
gridge,  that  would  have  been  mui 
all  manner  of  doubt. 

in  the  second  place,  I  come  uow 
whether  Mr.  Co|)e's  returning  a 
Mawgridge  before  he  gave  him 
wound  with  the  sword,  shall  have  i 
of  influence  upon  the  case :  I  hold 
Because  Mawgridge  bj^  his  throwii 
had  manifested  a  malicious  design, 
his  sword  was  drawn  immediatel; 
the  mischief  which  the  bottle  roigi 
of.  Thirdly,  The  throwing  the  ho 
tain  Cope  was  justifiable  and  It 
though  he  had  wounded  Mawgridg 
have  Justified  it  in  an  action  of 
battery,  and  therefore  cannot  be  ar 
tion  to  Mawgridge  to  stab  him  will 
That  the  throwing  the  bottle  is  a  de 
of  malice  is  not  to  be  controverted ; 
that  violent  act  he  had  killed  Mr.  C 
been  murder.  Now  it  hath  been  i 
A  of  his  owuialice  prepensed  asi 
kill  him,  an^B  draws  his  sword  i 
A  and  pursues  hun,  then  A  for  his 
gives  back,  and  retreats  to  a  wall,  B 
ing  him  with  his  drawn  sword,  A 
fence  kills  B.  This  is  murder  in 
having  malice  against  B,  and  in 
thereof  endeavouring  to  kill  him,  is 
for  all  the  consequences,  of  which 
original  cause.*  It  is  not  reasoni 
man  that  is  dangerously  assaulted, 
he  perceives  his  life  in  danger  from 
sary,  but  to  have  liberty  for  the  sec 
own  life,  to  pursue  him  that  mal 
saulted  him ;  for  "  he  that  hath 
that  he  hath  malice  against  anoth< 
to  be  trusted  with  a  (hmgerous  wc 

*  8ec  East's  Picas  of  tha  Ciowi 


Mmogridge*$  CoMe, 

bit.  ^8.  Bak  49.  And  wo  molted 
indgn,  18  Car.  9,  when  they  met  in 
ni,  in  |ireparation  for  my  lord  Mor- 
.  I>alt.  979.  If  A  of  malice  pre- 
Nharpe  a  |iwtol  at  B,  and  then  riina 
maea  him,  and  A  tanw  back,  and  in 
dfeoce  kills  B,  it  ia  murder.  Tliis  I 
ffDod  lair ;  for  A  had  a  maliciniiB  in* 
tf  B,  and  hit  retreat  after  he  had  dis- 
■  ^d1  at  B,  waa  not  becaose  he  re- 
I  for  his  own  aafety. 
tdnri,  there  are  mutual  passes  made 
bt  comhaunta,  yet  if  there  be  oricnnal 
m»  tlie  parties,  it  b  not  the  iiiter- 
'Uons  will  make  an  alteration,  or  be 
ilion  cf  the  offence  of  killing.  There- 
in if  Maw|^idge  had  thrown  the  bottle 
fi^  and  Mr.  Cope  bad  returned  ano- 

him,  and  kit  nim,  and  thereupon 
^  had  drawn  his  sword  ami  killed 

ft  would  have  been  murder.  Some 
hat  tliere  is  a  diflerence  betwocn  the 

-  that  the  assault  by  the  pistol,  and 
fa  dud  was  express  malice,  but  this 
lUce  implied.  Surelj  there  is  no  dif- 
sr  malice  implied  is  prepensed,  as 
F  there  had  been  a  proof  of  malice,  or 

-  some  considerable  time  before  the 
be  stroke  gif  en,  or  an  attempt  made 
implied,  is  as  dangerous  as  a  stroke 
a  malice  expressed,  therefore  may  be 
y  resiMed.  Thia  very  point  was  also 
i  by  the  twelve  judges  at  Serjeants'- 
hy  them  resolved  to  l>e  murder  upon 
BB  ot  my  lord  Morley 's  Case.  When 
Kieks  another  with  a  dani^^erons  wea- 
mt  any  provocation,  that  is  express 
"W  the  nature  of  the  act,  which  is 
Fk  flefinition  of  mulice  implied  is 
svx  expreaa  in  the  nature  of  the  act ; 
ranan  kills  an  officer  that  had  autho- 
»irrest  hin  iierwn  ;  the  person  v»ho 
is  defence  of  himself  from  the  nrrest, 

fe  Foster,  in  his  Reports,  p.  5rr4-5, 
Uwir ridge's  Case,  "  lie,  upon  words 
letween  him  and  Mr.  Cope,  threw  a 
]  great  violence  at  the  head  of  Mr. 
i  immediatf  ly  drew  his  sword,  Mr. 
nied  the  bottle  with  equal  violence ; 
th  lord  Holt,  lawful  and  jusiitiable  in 
so  to  do:  for,  as  he  ari^ueSh  a  little 
:,  He  that  hath  shewn  that  he  hath 
linst  another,  i«)  not  fit  to  lie  trusted 
ij^eroiis  weapon  iu  his  hand." — I'pon 
!  jud^e  observes,  '*  It  was  upon  this 

presume  (and  possibly ,  too,  u|>on  the 
ou  p.  touch ini;  the  arrest  of  a  person 
pTcn  a  dangerous  wound),  that  the 

in  that  ca«e  of  the  marquis  De 
irho  stab?>e«l  Mr.  Marley  sitting  in 
•  Annec3p.  16,)  di^chnr«^e<l  the  party 
oppoMfd  lo  have  <;ivtrn  hini  the  mor- 

iVom  all  nmiinf^r  of  pmsecntion  on 
at;  and  dechrcd  the  kiliin;^  to  be  a 
I  necessary  action/'     Forruer  Edi- 


A.  D.  1706. 


f66 


is  gailty  of  murder,  because  the  malice  is  im- 

{died,  for  properly  and  naturally  it  was  not  ma- 
ice,  for  his  design  was  only  to  defend  hirovelf 


lesign 
from  the  arrest 


S.  I  come  now  to  the  thinl  matter  proposed, 
which  is,  to  consider  what  is  in  law  such  a  pro- 
vocation to  a  man  to  commit  an  act  of  violence 
upon  another,  whereby  he  shall  drprive  him  of 
his  life,  so  as  to  extenuate  the  fact,  and  make  it 
to  he  a  manslauQfhier  only.  First,  Negatively^ 
what  is  not.  Secondly ,  Positively,  what  is. 
First,  No  wonls  of  reproach  or  infamy  are  suf- 
ficient to  provoke  another  to  such  a  degree  of 
anger  as  to  strike,  or  assault  the  provoking 
party  with  a  sword,  or  to  throw  a  bottle  at  him» 
or  strike  him  with  any  other  weapon  that  may 
kill  him;  but  if  the  person  provoking  h% 
thereby  killed,  it  is  murder. 

Jn  the  assembly  of  the  judges,  18  Car.  9^ 
this  was  a  |ioiut  positively  resolved. 

Therefore  I  am  of  opinion,  that  if  two  are  io 
company  tog;pthcr,  and  one  shall  give  the  other 
contumelious  language  (as  sup|>osc  A  and  D), 
A  that  was  so  provokeil  draws  his  sword,  and 
makes  a  pass  at  B,  (B  then  having  no  weapon 
drawn)  but  misses  him.  Thereupon  B  draws 
his  sword,  and  jmsses  at  A.  And  there  beinr 
an  interchange  of  passes  between  them,  A  kilb 
B,  J  hold  tliisto  be  murder  in  .4,  for  A'spassat 
B  was  malicious,  and  what  B  aAemt'arda  did 
was  lawful.  But  if  A  who  had  been  so  pro* 
voked,  draws  his  sword,  and  then  before  he 
passes,  B's  sword  is  drawn  ;  or  A  bids  him 
draw,  and  B  thereupon  drawing,  there  haf»pen 
to  l>e  mutual  passes :  if  A  kills  B,  this  wdl  be 
but  manslaughter,  because  it  was  sudden  ;  and 
A's  design  was  hot  so  absolutely  to  destroy  B, 
hut  to  combat  with  him,  whereby  he  run  the 
hazard  of  his  own  life  at  the  same  time.  But 
if  time  was  appointed  to  fight  (suppose  the  noxt 
day),  and  accordingly  they  do  ivjjit,  it  is  inur- 
der  in  him  that  kills  the  other.  But  if  thry  go 
into  the  field  immediately  and  fight,  then  but 
manslaughter.  Muppose  u|)on  provoking  Ian* 
guago  given  by  li  to  A,  A  gives  R  a  Im>x  on  the 
ear,  or  a  little  blow  with  a  stick,  which  hap-^ 
pens  to  be  so  unlucky  that  it  kills  B,  who 
might  have  some  imposthunoe  in  his  head,  or 
other  ailment  which  proves  the  cause  of  B's 
death,  this  blow,  though  not  justifiable  by  law, 
but  is  a  wrong,  yet  it  may  be  hut  manslaughter, 
because  it  doth  not  appear  that  he  designed 
snch  a  mischief. 

Secondly,  As  no  words  arc  a  provocation,  ao 
no  affronting  gesturt»s  are  KufK<:i<*iit,  th'^u^h 
never  so  reproachful;  which  p«i»i  "a*  *^- 
judgttl,  8  Cro.  7/9,  Wats  and  Biniui,  in  aL  ap  ■ 
peal  of  munler. 

There  having  been  aqnarnl  lMtwe.n  A  i^id 
B,  and  B  was  hurt  in  tlm  fr.i>  i  »>»!  about  i»p 
davs  after  B  came  and  iimmI.  .»  «•>  iii«»ni-  u 
A,' who  thereupon  striirk  hu"  "I""  "'*  ^  '  *^ 
the  leg,  of  which  he  iti«i..i.ilv  «»i«d  It  "t^ 
murder  in  A,  for  tin- nllM.iiin.^i  hini  in  ■  ■ 
manner  was  not  any  pinvm  ttii«Mi  to  A,  :; 

that  violence  to  B :  .  ■  l  t 

There  bath  bsen  aii'»thi-»  •■*■«.  whict  i 

F 


.1^^- 


«7] 


IS  GEORGE  I. 


halli  been  the  occasion  of  some  mistake  in  the 
dcHriiiion  of  qupstious  of  this  kind,  Jones  433, 
D.  ^Villiams's  Case,  he  being  a  Welshman, 
upon  St.  David's  day  hayin^r  a  leek  in  his  hat, 
m  certiiin  |»cr8on  pointed  to  a  Jack  of  Lent  that 
huoj^  lip  Iianl  l>y,  &ud  said  to  him,  Look  apon 
\oiir  countryman  ;  at  vihich  D.  Williams  was 
much  enras^ed,  and  took  a  hammer  that  lay 
upon  a  stall  hard  liy,  and  flung^  at  him,  which 
missed  him,  but  hit  another  and  killed  him : 
he  i%as  indicted  upon  the  statute  of  stalibing'. 
Resolved,  He  was  not  within  that  statute,  but 
guilty  of  muuklauufhter  at  common  law.  1 
concur  with  that  jodijrment,  that  it  is  not  within 
the  statute  of  stabbi  »(,>-,  for  it  is  not  such  a 
weapon,  or  act  that  is  within  that  statute,  nei- 
ther could  he  be  found  guilty  of  murder,  but 
only  «)f  manslaughter,  for  tlie  indictment  was 
for  no  more.  But  if  the  indictment  had  been 
for  murder,  I  do  think  that  the  Welshman 
ought  to  huve  hren  convicted  thereof,  for  the 
provocation  did  not  amount  to  that  degree,  as 
to  excite  him  designedly  to  destroy  the  person 
that  ga?e  it  him. 

Thirdly,  If  one  man  be  trespassing'  upon 
another,  breaking  his  hedges,  or  the  like,  and 
the  owner,  or  his  servant,  shall  upon  sight 
thereof  take  up  an  hedge-stake,  and  knock  him 
on  the  head;  that  wdl  l»e  murder,  because  it 
was  a  f  iuleot  act  beyond  the  proportion  of  the 
provocation,  which  is  sufficiently  justified  by 
llallowa^  's  Case,  who  did  not  seem  to  intend 
so  much  the  destruction  uf  the  young  man  that 
stole  the  ivood,  as  that  ho  should  endeavour  to 
break  his  skull  or  knock  out  his  brains,  yet 
using  that  violent  and  dangerous  action  of  eying 
him  to  the  horse's  tail,  rendered  him  guilty  of 
murder. 

If  a  man  shall  see  another  stealing  his  wood, 
he  cannot  justify  beating  him,  unless  it  be  to 
hinder  from  stealing  any  more ;  (that  is)  that 
notwithstanding  be  ne  forbid  to  take  any,  doth 
proceed  to  take  more,  and  will  not  part  with 
that  which  he  had  taken.  But  if  he  desists,  and 
the  owner  or  woodward  pursues  him  to  bea. 
him  so  as  to  kill  him,  it  is  murder. 

If  a  man  goes  violently  to  take  another  man's 
goods,  he  may  lieat  him  off  to  rescue  hit  gtKMls, 
9  £:  4,  :281,  b.  19  Hen.  6,  31.  But  if  a  man 
hath  done  a  trespass,  and  is  not  continuing  in 
it ;  and  he  that  hath  received  the  iniury  shall 
thereupon  beat  him  to  a  degree  of  killui^,  it  is 
murder,  for  it  is  apparent  malice;  for  m  that 
case  he  ought  not  to  strike  him,  but  is  a  tres- 
passer for  so  doing. 

Fourthly,  If  a  parent  or  a  master  be  provoked 
to  a  degree  of  pusion  by  some  miscarriage  of 
the  child  or  servant,  and  the  parent  or  master 
shall  proceed  to  oorrect  the  child  or  servant 
with  a  moderate  weapon,  and  shall  by  chance 
give  him  an  unlucky  stroke,  so  as  to  kill  him ; 
that  is  but  a  min^enture.  But  if  the  parent 
or  roaster  shall  use  an  improper  instrument  in 
the  GorrcGtioo ;  then  if  be  kills  the  ehild  or  tlie 
servant,  it  is  murder :  and  so  was  it  resolved 
by  all  the  judges  of  the  King's- bench,  with  the 
eoBoorrMoeofthe  JonI   "      "^'"  ""'' 


Trial  of  Major  Oneb^^ 

in  a  special  verdict  in  one  Grays'  Case,  lc= 

at  the  QUI  Bailey,  10th  October  18  Car.  8, 
removed  into  this  court,  Kelyng,  p.  64.  (ZI 
being  a  smithy  B  was  his  servant ;  he  c^ 
manded  B  his  servant  to  mend  certain 
belonging  to  his  trade ;  afterwards  he 
servant  being  at  work  at  the  anvil,  €hray 
his  servant  whether  he  had  mended  the 
as  he  had  directed  him.  But  B  the 
having  neglected  his  duty  acknowledged 
his  master ;  upon  which  tue  master  wt 
and  tohl  him  if  he  would  not  serve  hi 
should  serve  at  Bridewell;  to  which  the 
vant  replied,  That  he  had  as  gooil  serve  in 
well  as  serve  the  said  Gray ;  whereupon 
said  Gray  took  the  iron-bar  upon  which 
his  servant  wns  workint*',  and  struck  his 
with  it  upon  the  skull,  and  thereby  b^- 
his  skull,  of  wliich  the  servant  died.  '"T 
was  held  to  lie  inunler;  yet  here  was  a  ^ 
vocation  on  a  sudden,  as  huddeu  a  resentos 
and  as  speedy  putting  it  in  execution; 
thou(;li  he  might  conect  his  servant  X 
tor  his  neglect  and  unmunncrliness,  yet  exec 
ing  measure  therein,  it  is  malicious.  £▼« 
one  must  perceive  that  this  last  is  a  &troii| 
case  than  this  at  bar. 

First,  Gray  was  working  honestly  and  fair 
at  his  trade,  and  justly  calling  to  Lis  serrai 
Un-  an  account  of  his  business :  this  miFcreii 
was  in  the  actual  violation  of  all  the  rulni 
hospitelity. 

Secondly,  Gray*s  action  was  right  as  to  th 
striking  his  servant  by  way  uf  correction ;  kl 
the  error  was  in  tiie  degree  being  too  vioM 
and  with  an  improper  weapon.  This  uf  Mas 
gridge  was  with  u  resolution  to  do  mischief. 

Thinlly,  lie  liiul  not  the  least  provocatii 
from  Mr!  Cope,  until  after  be  had  made  tl 
first  and  daugenius  assault,  and  theu  nurwi 
it  with  thie  di-awing  his  sword  to  second  it,  b 
fore  Air.  Cojie  returned  the  other  bottle.  B 
Gray  had  a  provocation  hy  the  disappointmi 
his  servant  gave  him  in  neglecting  his  busiuM 
and  returning  a  saucy  ausiier. 

The  like  in  obstinate  and  perverse  cbildre 
tliey  are  a  great  giief  to  jmrents,  and  wb 
found  in  ill  actions,  are  a  great  provocatio 
But  if  upon  such  provocation  the  parent  thi 
exceed  the  degree  of  moderation,  and  tberal 
in  chastising  kill  the  chikl,  it  will  be  raunk 
As  if  a  cndgei  in  the  correction  that  ii  used  I 
ofa  large  size,  or  if  a  child  be  thrown  dov 
and  stamped  upon ;  so  said  the  lord  Bridgm; 
and  justice  Twisden,  and  that  they  ruled  it 
in  their  several  circuits. 

5.  If  a  man  upon  a  sudden  disappointOM 
by  another  shall  resort  violently  to  thatoth 
man's  bouse  to  expostulate  with  him,  and  wi 
his  sword  shall  endeavour  to  force  his  entraoc 
to  compel  that  other  to  perform  his  promise, 
otherwise  to  comply  with  his  desire ;  and  tl 
owner  shall  set  himself  in  opjiosition  to  hii 
and  be  shal)  pass  at  him,  and  kill  the  owner 
the  bouse,  it  is  murder,  U  Roll.  Hep.  40 
Clenent  agtinal  air  Charles  Blanl,  in  an  a 
peal  of  mordcr.    The  case  wai|  that  Cleme 


] 


Matogrid^e^s  Case, 

pnniKd  a  do^  to  xir  Charles  Blunt ;  and 
n^miH  leconliii^ly  to  deliver  liitn,  re- 
nd bni  die  dnpr  home  to  his  house :   at 
■rCbiriesBhint  fetched  his  s\7ord,  aud 
ti  CleowDt's  house  i'nr  the  dog.    Clement 
It  the  door,  and  resisted  his  eatry.   Blunt 
fcilli  Clement.      The  jury    were 
nd  fboDd  this  fart  in  sir  Charles 
II  be  bot  manslaughter.     Doddrid^^ 
«M4|>fjroroplDion  it  %vas  murder.    But  the 
"  ^  intioe  was  a  little  tender  in  his  di- 
litM  jory.    But  Holls  makes  this  re- 
Ifeilitwu  not  insisted  u;ion  by  the  a p- 
■■■AooodkI,  that  Clement  was  in  the  de- 
mm  tf  bit  bouse,  and  that  Blunt  atucked 
ttllNtein:  it  was  without  all  qnes- 
■■dcfithoo^h  of  a  sudden  heat,  for  there 
MSMBoh  made  by  Clement  upon  him  nor 
lyof  bii  friends,  but  all  the  violence  aud 
ni€p  sir  Charles  Blunt*s  side. 
tbng  Id  tbeae  particulars  shewn  what  u 
I  a  BTOfoeation  sufficient  to  alleviate  the 
^al^ng,  ao  as  to  reduce  it  to  be  but  a  bare 
'nde.  I  viJI  now,  secondly,  ^ve  some  par- 
rdtij  aucb  as  are  supported  by  autho- 
Wf  aad  general  consent,  aud  shew  what  are 
imailoired  to  be  sufficient  provocations. 

fat,  If  one  man  upon  an^ry  words  shall 

■bsBasaanlt  upon  another,  either  by  pulling 

iB^tbeiiose,  or  tillipius;  upon  the  forehead, 

■tfW  that  is  so  assaulteil  frhall  draw  bis  sword, 

■'iMDediately  run  the  other  through,  that  is 

!■  ■aasiaoi^ter ;  for  the  peace  is  broken  by 

iifOMMi  killed,  and  with  an  indignity  to  him 

itt  laerired  the  assault.    Besides,  he  that  was 

■  Aotted  might  reasonably  apprehend,  that 

bilkat  treated  him  in  that  manner  might  have 

iMifvthfr  design  upon  him. 

Tmk  ii  a  case  in  Stiles,  4G7,  Buckner's 
flat  Buckner  was  indebted,  aud  B  and  C 
■■r  to  bis  chamber  upon  the  account  of  his 
■vitBria  demand  the  money,  B  took  a  sword 
ktt  kaag  up,  and  was  in  the  scabbani,  and 
iMiattbe  door  with  it  in  his  hand  undrawn, 
I  krtp  the  debtor  in  until  they  could  send  for 
ftadiff  to  arrest  him ;  thereupon  the  debtor 
nk  oat  a  dagger  which  he  had  in  his  pocket 
id  Blabbed  B.  This  was  a  special  verdict, 
id  atfjudged  only  manslaughter,  for  the  debtor 
■a  iokulted,  and  imprisoned  injuriously  with- 
M  any  process  of  law,  and  though  witliin  the 
ardsot'the  statute  of  stabbing,  yet  not  within 
c  reason  of  it. 

fettoondlyy  If  a  man's  friend  he  assaulted  by 
oChfT,  or  engaged  in  a  quarrel  that  comes 
bhiws,  and  he,  in  the  vindication  of  his 
Old,  shall  oo  a  sudden  take  up  a  mischievous 
■rament  and  kill  his  friend^s  adversary,  that 
bat  nn«DsUught«r :  so  was  the  case,  12  Rep. 
[.  If  two  be  fighting  together,  and  a  friend 
[ike  one  takes  up  a  bowl  on  a  sudden,  and 
ik  it  breaks  the  skull  of  his  friend's  adver- 
ry,  ef  which  be  died,  that  is  no  more  than 
BHhO|{bler.  80  it  is,  if  two  be  tighting  a 
■I,  Ihougb  upon  malice  prepensed  ;  and  one 
■M  and  takes  part  with  him,  that  he  thinks 
■f  kite  tbe  dindTaiUage  in  the  combat,  or  it 


A.  D.  1706. 


[70 

I  may  be  that  he  is  most  affected  to,  not  know- 
ing of  tlie  malice,  that  is  but  manslaughter,  PI. 
Com.  101,  John  Vaughan  and  Salisbury. 

Thirdly,  If  a  man  perceives  another  by  force 
to  be  injuriously  treated,  pressed,  and  restrain- 
ed of  his  liberty,  though  the  person  abnsed  doth 
nol  complain,  or  call  tor  aid  or  assistance ;  and 
others  out  of  compassion  shall  come  to  his 
rescue,  and  kill  any  of  those  that  shall  so  re- 
strain him,  that  is  manslaughter,  18  Car.  2, 
adjudged  in  this  Court  upon  a  special  verdict 
found  at  the  Old -Bailey,  in  the  case  of  one 
Hugett,  18  Car.  2,  Kelyng,  p.  59.  A  and 
otbors  in  tbe  time  of  the  Dutch  war  without 
any  warrant  impressed  B  to  serve  the  king  at 
sea ;  B  quietly  submitted  and  went  off  with 
the  press- masters ;  H^igett  and  the  otliers 
pursued  them  and  required  a  sight  of  their 
warrant ;  but  they  shewed  a  piece  of  paper, 
that  was  not  a  sufficient  warrant :  thereupon 
Hugett  with  the  others  drew  their  sword j,  and 
the  press-masters  theirs,  and  so  there  was  a 
combat,  and  those  who  endeavoured  to  rescue 
the  pressed  man  killed  one  of  the  pretended 
press-tuasters.  This  was  but  manslaughter ; 
for  when  the  liberty  of  one  subject  is  invaded, 
it  affects  all  the  rest :  it  is  a  t>rovocation  to  all 
people,  as  being  of  ill  example  and  pernicious 
consequeuce.  All  the  judges  of  the  King's- 
bench,  viz.  Kelynge,  Twisi^en,  Wyndhaiu  und 
Moreton  were  of  opinion,  that  it  was  murder, 
because  be  meddled  in  a  matter  in  which  he 
was  not  concerned  :  but  the  other  eight  judges 
of  the  other  courts  conceived  it  only  man- 
slaughter, to  which  the  judges  of  the  Iviug's- 
bench  did  conform,  and  gave  judgment  accord- 
ingly. 

Fourthly,  When  a  man  is  taken  in  adultery 
with  another  man's  wife,  if  the  husband  shall 
stab  the  adulterer,  or  knock  out  hJH  brains, 
this  is  bare  inunsluuglit(*r  ;  lor  j(  alousy  is  the 
rage  of  a  man,  and  adultery  is  the  hii^hest  in- 
vasion of  property^,  1  Vent.  168.  Baymond 
213,  I^lanning's  Case. 

If  a  thief  comes  to  rob  another,  it  is  lawful  to 
kill  him.  Aud  if  a  man  comes  to  rob  a  man's 
posterity  and  his  ftimily,  yet  to  kill  him  is 
manslaughter  ;  so  is  the  law,  though  it  may 
seem  hard,  that  the  killing  in  the  one  case 
should  not  he  as  justifiable  as  the  other.  Lev. 
XX,  ver.  10.  **  If  one  coininitteth  aduhi^ry 
with  his  neighbour's  wife,  <'ven  he  the  adul- 
terer and  the  adulteress  shall  be  put  to  death." 
So  that  u  man  cannot  receive  a  higher  provo- 
cation. But  this  case  bears  no  proportion 
with  those  caMos  that  have  been  adjudged  to  be 
only  uianslausfhter,  and  thrrefore  the  Court 
being  so  advised  doth  determine  that  Maw- 
gridge  is  guilty  of  murder.  Mure  might  be 
said  upon  this  occasion  ;  yet  this  may  ut  pre- 

*  in  such  a  case  the  Court  of  Justiciary  in 
Scotland  admitted  the  wife  of  a  piuiuel  upon 
his  trial  for  nuirder  to  give  evidence  that  the 
pannel  discovered  the  deceased  in  the  act  of 
ndnltery  with  her.  See  Christie's  Case. 
ai'Uurin  N**  92. 


71]  12  GEORGE  L 

sent  safBee  to  Mt  the  matter  now  ia  question 
in  its  true  lii^bt,  to  shew  how  necessary  it 
is  to  ap|>ly  the  law  to  exterminate  such  noxi- 
ous creatures. 

Upon  this  confiction  the  Court  did  direct 
that  process  should  be  issued  against  Maw- 
gridge,  and  so  to  pnicecd  to  outlawry  if  he 
cannot  be  retaken  in  the  mean  time.  * 

The  case  was,  VIr.  Cope  (a  young^  branch 
of  tlie  Co[ics  of  Rrains«*l,  in  Hampshire,  harts.) 
havini;  i^ot  a  lieutenant's  c«)mmiss:on  ;in  the 
guards,  invited  some  officers  and  other  geutle- 
men  iodine  with  him  at  thu  Dolphin  tavern  in 
Tower  Kire«ft,  June  17, 1706i  in  order  to  wet 
bis  commission ;  one  of  the  gentlemen  t«K>k 
Ma^reridge  aloiiif  with  him,  telling  him  he 
would  be  as  welcome  to  Mr.  Cope  us  any  of 
the  company ;  upcm  that  he  went,  and  after 
dinner  wa«  over,  and  paid  for  by  Mr.  Cope, 
they  all  staid  a  while  longer,  and  hud  more 
wine  brouifht  in,  and  paid  half  a-cro«vn  each 
for  their  club ;  then  they  broke  up,  ami  most 
of  them  went  away ;  but  Mr.  Mawgiidge  and 
the  rest  being  invited  by  Mr.  Copt:  to  the  cuard- 
room  in  the  Tower,  went  with  him,  and  callrd 
for  wine.  Two  bottles  were  accordingly 
brought ;  and  as  they  were  dnnking,  a  coach 
came  to  i\\q  guard- room  door  with  a  woman 
in  it  (of  no  very  mudest  behaviour),  and  asked 
for  capt.  Cope  ;  whereupon  he  and  Mawgridge 
went  to  the  coach  door,  and  brought  her  into 
the  guard-room  ;  where  havinje  been  a*while, 
she  cried,  Who  shall  pay  ror  my  coach  ? 
Upon  this  Mr.  Mawgridge  said,  I  will,  and  so 
discharge<l  the  coach ;  then  he  offered  to  salute 
her,  but  she  ^rejected  him,  and  gave  him  ill 
words ;  to  which  he  made  returns  of  the  like 
kind  ;  on  which  lieut.  Coiic  took  the  woman's 
part;  and  then  Mawgridge  demanded  satis- 
laction  of  Mr.  Cope,  in  order  to  iirovoke  him 
to  tight,  &c.  iko,  and  killed  Air.  Cope.  Upon 
tliis  Mawgridge  was  tried  at  the  Old -Bailey  in 
July  170(3,  for  the  murder,  and  a  special  ver- 
dict found,  wherein  ail  the  particulars  are  re- 
lated, as  before- mentioned: — But  before  the 
arguing  the  special  renlict,  he  ma<le  his  escape 
out  of  the  Marshalsea,  where  he  was  confined  ; 
and  that  night  went  to  his  father,  major  Maw- 
gridge, who  with  his  wife  (Mawgridge's 
mother-in-law)  washed  and  rnbbed  him  all 
over  with  green  walnut  shucks  and  walnut 
Hquor  to  disguise  him,  and  then  all  three  set 
out  in  the  night,  and  walked  above  30  miles 
into  Essex,  where  the  father  gave  100  guineas 
lo  a  master  of  a  Tessel,  near  Colchester,  to 
carry  him  safe  to  Holland,  which  he  did ;  there 
be  was  concealed  above  a  year  and  half;  for 
though  he  was  a  very  hanusome  man,  he  was 
80  disfigured  scarce  any  oue  knew  him;  he 
spoke  French  and  Spanish  generally  and  mighty 
well ;  but  at  last  lieing  at  a  tavern  in  Ghent  in 
Flaudera,  and  a  little  too  merry,  he  spoke  Eng- 


Trial  of  Major  Oneby^  tfc» 


[ 


lish  so  fluently,  and  by  some  expressions 
dropi,  became  suRpected,  seized  (a  large  : 
ward  having  been  offered  for  apprebendi 
him),  and  on  examination  found  to  be  the  m 
who  killed  Mr.  Cope,  was  brought  over 
England  in  March  1707-8,  and  being  brou| 
to  the  King's- liench  bar,  received  sentence 
death,  and  was  executed  at  Tvbum,  on  \V< 
nesday,  April  SB,  1708,  with  William  Gre| 
for  high-treason.*  The  ordinary  says,  Ma 
crriilge  went  in  a  coach  with  him  (and  Gregu 
a  Klt^ge)  to  Tyburn;  ''  That  he  submit 
ivillini;ly  to  his  sentence,  owning  the  justici 
it,  though  he  declared  he  had  no  premediti 
malice  uGrainst  the  gentleman  he  so  uof 
tunately  killed.  He  said,  he  heartily  repen 
of  it,  anil  praved  that  Goii  would  wash  away  i 
stain,  and  deliver  him  from  the  guilt  of  tl 
blood  which  he  had  so  shed.  He  owned  t! 
he  had  been  a  very  great  sinner,  but  was  m 
that  he  had  any  ways  offended  God  and  m 
and  begged  pardou  of  both.  That  he  boj 
God  M'Ould  siiew  him  mt^rcy  in  another  wo 
{>ecanse  he  was  always  giieving  for  his  si 
and  particularly  for  this,  ever  since  he  I 
made  his  escape ;  and  though  he  had  no 
prehension  of  lieing  brought  lo  condeuinal 
here  for  it,  it  was  still  continually  liefore  h 
and  the  remembrance  of  it  was  painful  to  b 
He  made  strong  resolutions  to  live  i»therw 
and  was  always  prayin:;  to  God  to  pardon  h 
and  to  keep  him  for  the  future,  tie  ackn< 
lodged  the  justice  of  God  had  overtaken  h 
and  would  not  suffer  him  to  live  long 
punished  for  tliis  heinous  crime:  He  decli 
his  being  in  charity  w  ith  all  the  world,  e 
with  those  who  had  brought  him  to  this 
puniiihment,  and  prayed  for  the  conversion 
all  wicked  persons,  desiring  they  would  t 
wanting  by  him.  He  told  me,  he  was  ak 
40  years  of  age,  boni  at  Canterbury  oi  g 
parents,  and  brought  up  in  the  Church  of  E 
land;  that  b(»tli  his  father  and  ancefst«>rH 
had  the  honour  to  serve  the  crown  for  aiNive 
vears  as  drum- major;  and  that  he  him 
had  received  a  very  good  educatiiNi, 
brought  up  genteelly,  though  he  was  lor  a  c 
siderable  time  kettle-drummer  to  the  first  ti 
of  guards,  and  was  a  going  with  a  commisi 
into  the  army  when  this  melancholy  acci< 
happened." — Major  Mawgridge,  on  hi«  s< 
execotion,  which  hail  no  great  an  effect  on  I 
could  not  be  prevailed  on  either  to  eat  or  di 
for  three  nights  and  three  days,  and  n 
about  like  a  madman ;  he  afterwards  beha 
at  times  like  one  distracted,  drawing  his  8w< 
and  threatning  to  munier  his  wife,  obliging 
to  kneel  down  for  him  to  stab  her.  Sec.  and  1 
relenting.  In  short,  he  was  never  afW.r  eaa 
in  his  right  senses ;  movipg  about  from  plac 
place,  though  he  lived  to  near  80  years  of  < 


*  fieo  bit  CMe»  tqI.  U,  p.  1971. 


m 


Trkl  tfJamt  Carttq^ 


A.  D.  1738. 


C74 


4^.  TIk  Trial  of  Jaues  Caknegie,  of  Finhaven,  before  the  Court 
of  Justiciary  (in  Scotland),  held  at  Edinburgh,  July  35,  for 
the  Murder  of  Charles  Earl  of  Strathmore:  2  Gkouce  II. 
AD.  17S8. 

Cob  Jwmiim,  S. O.  N.  Bwi*  Irnta in  no- 
mtammim  Doom  Burgi  de  Eilinburgl) 
MMaaialoDM  Henui  Jnlii,  HtJIerimi 


t^lmmmtmnam  ngaitoo  ocuto,  per  ho- 
mmA»  TirM  AUaniuai  Cockburne  de 
QnaMan,  Jonimriuin  Clericum,  Dd- 
■  JaeeboiB  HuikcDSie  de  Roy*toun 
~  "  Tmmm  CaUarwood  dc  Pvlbnin, 
■  DiTidem  Enkina  Je  Dud, 
I  Gmkerain  Pringle  de  New- 
hi,  «  Hngklniin  Andmin  Fletcher  de 
KIbb  n,  CommiMiaii  trio*  J  otticiariB,  diet. 

CiiTM  legitime  affirmato; 

Ibmi  Curtice  of  FiahaTm,  prisoaer  io  tbe 
UMfa  vF  EdiDbiirgfi,  paoDcl. 


TEDa 


lofStntbrnore,  end  Mr.  James 
Ifi^  knther-gennui  and  nearent  or  kin  to 
AidMCMi  Charlea  carl  «f  Strathmorr,  with 
— aiMaadal  tbe  iiwlanceaf  Dancan  Pi>rbnr, 
^  fe  iaijriij'«  advocate,  for  hia  bigliDeai'i 
Mnttifbrlbe  crime  of  wilful  and  premedi- 
t^mmitr  committed  by  bim  upon  the  penun 
if  Ac  nid  Cbarln  earl  of  IStrallimore,  as  is 
MnfriljoiPnliunH  in  the  indictment  raiwd 
■fMhin  tbrreanent,  which  is  as  liillnwH : 
B  of  FinhaTei 


I      iiitoTdbM.ih  uf  Gdinbuttrh.  vom 
'     mittmfl.  at  ttiP  inilaiice  of  Siiinn 


icteil 


•fteilhiFiure,  and  Mr.  Jiinirs  Lyi 
l^^n  and  oenrett  of  kin  lo  tbe  dpceawil 
CMrlnnrlot  Stnilhmarc,  ntih  conrnnrseHnit 
mUtrmtttnc*  n\  Dunnn  Forbrs,  wq.  hi*  ma- 
f9j't  a^TOL-nte,  for  his  hi[{line«s'ii  inieiv«l : 
tatabere.  by  the  laws  of  Gud,  tbe  tan  ol  nn 
■vp,  tbr  rommnn  law,  and  the  manicinal  law. 
■d  practtcr  nf  ihii  kiiiKdom,  as  well  at  ilit- 
Iswt  of  all  well-if"*erD«d  realm*,  wilful  eod 
fnneditate  murder,  anil  all  mnrdcTand  homi- 
ng, or  heini{  art  and  part  ibpreol',  ere  moai 
•tpiaaiii  crime*,  and  ivrerely  punishable ;  ypl 
>*eit  t<,  and  nf  verity,  that  yvu  hare  prenumeil 
m  ciHiimti,  and  are  i;iii1iy,  actor,  art  and 
fan.uf  ill,  iir  nne  fir  other  ot  ihefnTi-said  hiirriil 
CTAra:  in  ao  tar  at,  hailnfr  BCausrlMs  ill- villi 
■d  reitentment  agaiott  (hedeeesttCliariPseiirl 
rf  Ktraihmore,  you  ganceired  a  deadly  hutred 
■d  malict!  airatuit  him  ;  and  shaking;  otf  all 
fear  of  God,  and  regard  to  theforesaiil  Iniiilalile 
hwi,  on  Tbunday  the  Wh  o)'  May,  in  thin  pre- 
■aiyear,  1738,  or  one  or  othemftlie  day*  ol 
ftr  aid  nwiitb,  about  the  Imiir  of  eight  nr  nine 
'fllic  night  of  that  day,  or  some  other  hour  iif 
lUi  day  a*  oigbl,  npon  the  alnel  of  the  town 


of  Forfar,  within  the  coanty  of  Forfar,  you  did* 
with  a  dtawD  aivord,  or  aoriie  oilier  oBeDwre  or 
mortal  weapon,  wilhoul  the  leant  cokiur  or 
cauM  of  proTOcation  then  giren  Ly  bim,  iurada 
tlie  aaid  ileceatt  earl,  who  Lad  no  weipon  )h  hta 
hand,  and  did  basely  and  felonioutly  munlCT 
and  kill  liim,  by  giving  him  a  wound  Iherewillt 
in  the  belly,  some  inches  abote  the  naTel, 
which,  by  following  (he  ihrutl  with  a  second 
push,  weDt  thruaghiheintestkiiesaDd  iheback, 
a  little  tower  than  where  the  said  weapon  ^- 
tered  the  belly :  nf  which  wound,  alter  gnat 
pain,  on  Saturday  immalialelv  thereafter,  or  ■■ 
some  abort  space  Ihereafter,  he  died  ;  aod  so 
was  cruelly  and  barbarously  murdered  by  yon. 
At  least,  althe  time  anil  place  aboie-meniioDcrf, 
with  a  drawD  iword,  or  some  other  mortal 
weapon,  without  any  juat  canie  or  pro*ocalion, 
yougaTetbeaaiildpceaslCharleaearlofBlral^ 
more  a  wound  in  the  belly,  which  reached 
through  the  iniestiDea  anil  lack,  wherelhrougb 
be  aoon  at)er  tell  down,  and  died  at  tlia  tiiM 
loretaid.  At  least,  at  the  time  arid  place  abot* 
described,  the  naid  Charlea  earl  uf  Sirothmora 
was  wi(h  a  drawn  iwonl,  or  aoine  other  ileailiv 
weapon,  feloniouKly  and  barbarnwdy  woundaJ, 
and  of  tbe  said  weuud  died  within  a  few  daya 
ihercafier ;  anil  yiiii  were  art  mid  part  io  hia 
murder.  Ity  all  which,  it  is  eviiltnt,  that  vou 
are  guilty,  arl  ami  part,  uf  the  crimes  of  wiirul 
und  premeditate  murder  and  humicide,  or  ono 
nr  other  of  them,  at  the  time  and  place,  and  in 
the  manner  abore  set  foilh.  And  which  fucta, 
or  part  tlierenf,  nr  your  beiflg  art  anil  part  of 
anv  of  the  said  rrimeR,  being  Ibunil  proven  by 
ihe  vcrdirKif.inaiiaixc,  in  iireiciii-c  of  llie  lords 
jiistice  fffMifral.  juhlice  clerk,  and  commit- 
aiooera  orjuitii-inrv,  you  iiui;hl  lo  be  exempla- 
rily  punisiieil  wiih  the  pains  of  law,  to  iho 
terror  of  others  to  commit  the  like  in  lime  coiu- 

Puriiiert. — Mr.  Duncan  Fnrhea,  his  majes* 
ly'it  advocate;  Mr,  Churles  Afeskine,  his  ma- 
jesty's siiliciti'r;  Mr.  Atex.  Hay,  advocate; 
Mr.  Patrick  (iratil,  advocate;  Mr.  Georgv 
OKilvy.  ailviH'H  e ;  Itlr.  .Ii.hn  Ut;ilvie,  advo- 
c:i(e  ;  Mr.  Hii^li  l>alr_\mple,  adviTute, 

PrivuroluFs  in  Dffenet.—yU.  ttobert  Dutf 
JlIs,  sdvucate;  Mr.  .lumps  Ft<rt;usson,  senior, 
ailviicate;  Mr.  John  Forbes,  udvncale;  Mr. 
n'illiam  (iianl,  admcule ;  Mr,  Janiea  Pater- 
son,  advocate ;  Mr.  (Jeorge  Sinolk't,  advocate, 

Tbe  libel  lM>iiig  Ofii-nly  read  in  court,  and  de- 
bate vini  race,  in  presence  of  thp  lords,  ihry 
orduioed  biiih  parliea  lo  giv«  in  their  iiilormn- 
I  tionii  tn  the  clerk  of  court,  iu  order  to  be  re- 
corded ;   tbe  pursuers  to  give  in  thein  agaioil 


»J  1  GEORGE  II. 

Sklunlay  next ;  ■nd  ihe  panDel'i  procuralon 
lo  tfive  in  bib  Kgainit  Friday  therealW:  uid 
continued  the  caoie  till  Iho  lit  dij  of  Aiignit 
next  to  cume,  at  oiDe  o'clock  ronniin^c;  and 
onttined  ivitneasefl  and  asaiBera  to  attend  alihtt 
time,  each  penoa,  under  the  paiu  of  latr ;  and 
ordained  the  pannel  to  be  carried  back  ta  pri- 
«m ;  and  granted  aecnnd  diligence  for  tbe  |iur- 
■uets  against  the  witottu*.  > 

iMrORMATION  for  So**KN«  C0UDt<«  of  ^RATR- 

HORB,  and  Mr.  James  Lton,  Brotlier- 
tferman  to  the  deceawd  Charle*  Earl  of 
Slrathmore,  and  bia  Majeily't  Advocate 
(or  Ilia  lliglinen*Blntere«l,aEaiDitJkTnes 
Caraegie  of  FlabaTen,  PanD^. 

The  said  James  Caroegie  is  indicted  and  ae- 
•iiseil  as  gnillv,  art  and  part  of  wilful  and  pre- 
neklilatc  murder;  at  least  of  murder  and  homi- 
cide :  in  so  far  aa,  upon  the  9lh  of  May  laat, 
npon  llie  atreela  nf  Furfar,  with  a  drawn  aword, 
Ik  wounded  the  deceased  CharlrK  earlof  filratfa- 
mnrc  in  the  belly,  some  mcbesBboTelhetiavel ; 
nhioh  tvouLiil  went  Ihruug'h  tbc  iotesiines  and 
the  back,  a  little  lower  than  where  the  «aid 
ffcapou  entered  the  belly;  of  which  wound  he 
died  soon  after, 

Tbe  indictment,  in  the  (int  plare,  charge 
the  fact  a*  proceeding  from  a  causeless  ill-will 
and  resentment  the  panncl  bad  cooceired 
against  tlie  defunct,  who,  at  the  time  the  wound 
was  given,  bad  done  nothing  that  could  be  pre- 
lendMl  Bs  a  colour  or  cause  of  provocation;  and 
a  circumstance  ia  noticed,  from  which  it  may 
be  inferred,  that  there  was  deadly  hatred  aorf 
malice ;  namely,  that  after  one  push  there  waa 
a  second,  whereby  the  wound  went  quite 
through  his  body. 

There  is  e  second  branch  of  the  indictment, 
in  which  the  circumstances  of  premeditate  ma- 
lice and  forethought  felony,  needed  not  to  be  li- 
belled ;  and  he  is  chargeo  only  with  murder  or 
koniicide,  aa  seiiarately  relevant.  And,  lastly, 
art  and  nart  is  charged  upon  bitn. 

At  calling  befitre  the  lorda  of  Justiciary, 
a^inst  the  first  t»«Dck  of  ihe  iodictmsnt,  it 
was  eicepted,  ■<  That  the  indictment  was  ino 
genera),  particular  circnmslancea  not  being  ex- 
pressed from  which  the  causeless  ill-Mill  or  ro- 
■eiittneot  meutinned,  and  forethought  and  pre- 
meditate malice  could  be  inlerrcJ,  whereby  the 
panoel  was  deprived  of  the  heueGt  due  lo  all 

(innels,  wheu  tried  for  their  Hie,  lo  exculpate 
ims«If,  by  shewing,  that  if  at  any  time,  prior 
Id  the  lime  [iientiuoed  in  the  indictment,  there 


reconciliatinn  and  entire  friendship :"  AuJ  it 
was  said,  "  That  general  libels  ought  not  to  be 
sustained." 

Ta  this  it  was  answered.  That  a  prctiuns 
grudge  is  charged,  and  that  the  deceast  was  in- 
*adea  without  the  least  ctdour  or  cause  of  \in- 
TOcatiou  ;  which  is  the  stroni^cat  evidence  of 
foictbougbt,  npecially  when  joiuni  witb  tbi* 
Mhir  putinilar,  that  thw  first  tbnut  wu  fol- 


Triat  ofjamet  Carnegie, 

lowed  with  a  second  push,  which  was  &.  i 
uf  inveterate  and  relentless  malice  ;  and  It 
was  sufficient  to  chargo  a  previous  qnari> 
general,  which  would  be  made  appear  Ity 

Siroof.  Nor  will  it  be  found,  that  in  Ubtr 
iirethanght  felony,  it  is  usual  ornecessDr, 
libel  all  tbe  circurostances  from  which 
forethought  may  be  presumed,  especially  w 
the  ipeciti  facti  is  chart'ed  iu  tliat  mauKr^ 
affiirds  the  presumption  of  farethought,  leM 
forth,  that  the  wound  was  given  withonl 
least  colour  or  cause  of  provocalinn  on  tbe  p 
of  the  defunct  at  tliut  time.  Neither  can  ic 
thought  unfair  with  regard  to  the  pannel,  9 
if  he  had  eny  relevant  ground  of  exculpalis 
would  hare  access  to  prove  frienilship  witb  t 
defunct,  to  take  off  any  charge  of  preeeda 
quarrels,  whereof  lie  could  nut  be  ignora 
And  still  there  must  be  less  ground  of  cot 
plaint,  where  no  good  reason  of  exculpatioa 
offered,  whereby  the  panne]  can  be  allowed 
adduce  proof,  which  it  is  believed  is,  witin 
coniraihclion,  the  case  upon  Ilia  first  bnncfc 
the  libel. 

As  tu  tbe  two  last  branches  of  the  indil 
ment,  it  was  allqied,  <'  That  several  circu 
stances  attending  tbe  fact  complained  of  m 
concealed,  which,  when  opened,  afforded  ll 
pannel  plain  and  obrious  defenoea ;  and  tba 
fore  it  was  infortnad.  That  tbe  pannel,  a  ps 
sun  disposed  to  peace,  and  in  entire  friendsk 
with  the  defunct,  chanced  to  be  in  compai 
with  him  about  the  time  chaived  in  the  indii 
ment,  with  one  John  Lyon  of  Bridgelon,  m 
others:    that  firtdgeton  gave  him  t^e  faigfai 


the  pannel  was  in  hazard  of  perishing,  bail 
extremely  drunk :  that  getting  up,  heated  wi 
liquor,  and  so  extremely  provoked,  he  drew  I 
iword,  and  pursued  Brirlgeton,  and  that  tbe  i 
funct  thrusting  himself  between  them,  casual 
received  tbe  thrust  aimed  at  another." 

From  tbeao  circumstances,  it  was  pled  I 
the  pannel,  "Thatif  he  did  kill  the  defunct, 
was  a  mere  misadventure,  raiher  a  misfortu 
as  [than]  a  fault,  and  in  no  event  could  suhje 
liim  to  the jirno  ordtnuria ;  fiirthat,  Imo.  . 
these  circumstances  had  he  killed  the  said  Jol 
Lyon  of  Bridgeton,  thepain  of  death  could  n 
"iBve  been  inflicted  either  by  the  law  of  Go 
he  common  law,  nor  by  the  municipal  law 
Chiskingdum,  neither  by  the  laws  of  other  we 
^overnM  realms  ;  pariicularly  by  tlie  laws 
our  neighbouring  nation,  in  regard  the  fact  w 
done  of  sudilenty,  by  a  peivoa  in  diink,  ai 
highly  provoked." 

And,  Imo.  As  to 'he  lavr.  of  God,  chap,  x] 

.  13,  of  Exodus  was  appealed  lo,  where  it 

lid,  "  that  if  a  man  lief  nt  in  wait,  there  w 

I  he  a  place  appointed  whiihrr  hesbould  fly 

hich  seemed  lo  require  forethought,      Ai 

IC  xxxvth  chap,  ot  Numbers,  ver.  as,  wbe 

was  said,  "  That  if  any  one  thrust  anoth 

suddenly   without  enraiiy,   the  congtegstk 

— -  to  judge  between  tiio  slayer  and  the  n 

rerofhlwd;"  fron  whick  itwtMJdiea 


fir  iktMwriiT  qfihe  Earl  nf  Strathmori* 


A.  D.  179& 


in 


dHgbterof  HuMcntj  was  not  punishable 

lAii  it  was  aniwerady  that  in  the  law  of 
Aegfoeral  rale  waa,  •'  Wboeo  sheddeth 
hmti,  hj  man  aball  his  blood  be  shed : 
iAe  hand  of  man,  and  at  the  hand  of 
^Mi*!  brother,  and  at  the  hand  of  every 
avilbe  life  of  man  to  be  required/*  Geo. 
fik  That  by  the  law  of  Muaen,  death  of 
■kf  was  plainly  capital ;  nor  had  the 
itft  the  benefit  of  the  city  of  refuge, 

etbe  slaughter  was  mere  misfortune, 
,  which  was  plainly  the  meaning  of 
■riiiB  Exodus,  **  If  a  man  lie  not  in  wait, 
H  Mirer  him  into  his  hand  ;'*  which 
iHivith  any  propriety  be  understood  of 
fhto  committed,  where  the  intention  and 
p'aHecedit  ictum  licet  non  congrcssum.' 
rflkii  matter  b  clear]  v  exphiined  in  the 
^  of  Numbers,  where  he  who  smites 
■  Bitmment  of  iron,  is  called  a  mur- 
I  lad  where  it  is  said,  <*  That  he  who 
ivitb  a  throwiufi^  stooe,  or  with  a  hand 
Btf  wood,  wherewith  a  person  may  die, 
idK,  the  marderer  is  surely  to  be  put  to 
'  And  then  the  law  proceeds  plainly  to 
f  OSes,  where  death  ensues  from  strokes 
■H  of  a  weapon  not  deadly,  and  there 
MS  indeed  hatred  and  enmity ;  but  if  it 
mddeoly  and  witliout  enmity,  or  (which 
■kible)  in  the  OSd  Terse,  «'  With  any 
■herewith  a  man  may  die,  seeing^  him 
ri  was  not  his  enemy,  nor  sought  his 
;  then  the  congregation  was  to  judge  be- 
ie  slayer  and  the  revenger  of  blood." 
ahich  it  is  plain,  that  slaughter  upon 
ij,  even  without  forethought  or  previous 
't  VIS  capital  by  the  law  of  Moses,  if 
sod  was  given  with  a  lethal  [deadly] 
I,  except  when  it  was  tlone  ny  mere 
Lu  by  throwing  a  stone  whereby  a  man 
k,the  person  who  threw  it  seeing  him 
iriso  at  no  time  was  his  enemy,  or  sought 
m.  And  this  is  the  case  mentioned, 
iz,  rer.  4,  Deut.  where  it  is  said,  **  Who- 
iflu  his  neighbour  ignorantly,  whom 
sdnnt  in  time  past"  (which  is  limited  by 
aple  immcniiately  sulijoined  to  homicide 
asiial),  <*  shall  fly  into  one  of  these 
uid  lire."  Now,  in  the  present  ca^e,  the 
of  tlie  weapon  and  of  the  wound  are 
d  clearly  exclude  founding  with  any 
upon  the  disposition  of  the  law  of  Moses, 
the  <]uestioii  were  of  the  pannel's 
i(  the  benefit  of  the  ett  v  of  refuge.  But 
is  it  an  arg^ument  of  nny  force  to  plead, 
iere  the  benefit  of  tlie  city  of  refuge 
allied,  that  by  the  Jaw  ot  nature  the 
WM  not  capital ;  for  the  revenger  of 
ould  never  hav»  been  tolerated  to  kill 
;  the  city  of  refusre,  where  innocent 
ras  spilt,  whereby  the  laud  must  have 
lluted,  and  the  stil>j(.>cts  were  permitted 
,  so  notorioiiKly  to  break  in  upon  the  es* 
d  Jaws  of  nature ;  and  therefore, 
it  is  an  argument  of  unavoidable  tbrce, 
itraver,  by  the  law  of  Moses,  capital 


Iiunishments  are  allowed,  such  punishments ara 
awfnl:  But  the  argument  is  not  of  equal 
strength,  that  where  the  powent  of  the  law  wer^ 
suspended  by  the  jui  utjfii  established  by  posi- 
tive precept,  that  therefore,  in  countries  whera 
there  is  nu  such  privilege,  either  by  tlie  laws  of 
God,  or  the  laws  of  the  land,  that  there  tha 
pnniahment  is  not  to  be  capital,  where  the  jug 
asyii  could  have  been  claimed. 

2do.  It  was  contended,  '*  That  by  the  com» 
mon  law,  not  only  dolus  bnt  propontum  wai 
necessary ;  and  that  slaughter  committed  isi- 
petu  et  rixd  were  not  to  be  punished  capitally.*' 
And  to  this  purpose,  the  authority  of  the  lean- 
ed Voet,  was  cited,  who  seems  to  say.  That 
in  rud,  if  the  person  cannot  be  discovered  who 
gave  the  deadly  wouud,  the  ordinary  punish- 
ment ahonid  not  take  place. 

But  when  this  matter  it  considered,  it  ia 
plain  there  arises  no  good  ar]gument  for  the 
pannel  from  the  common  law:  For  tbongb 
tbeva  is  a  difference  to  be  made'  between  pra» 
potiimm  and  machinaiio  prameditata,  and  aud- 
den  passion  and  beat  of  drink,  determinmg  tht 
will  to  commit  the  crime ;  yet  as  laws  were 
made  and  became  necessary,  chiefly  from  the 
depraved  passions  of  mankind,  they  cannot  af- 
fonl  a  sufficient  excuse  against  the  ordinary 
punishment  of  an  atrocious  crime ;  and  there 
IS  dolui^  when  a  crime  is  even  committed  of  a 
sudden,  although  there  be  no  forethought:  fete 
it  is  commonly  said,  that  op|M>rtunity  makes 
the  thief,  and  theft  is  committed  impetu^  never- 
theless not  without  dole.  Nor  is  it  necessary 
to  prove  or  libel  a  forethought  in  the  commis- 
sion of  the  crime.  In  the  same  manner  pas* 
sion  or  provocation  may  unfortunately  deter- 
mine the  will  to  the  commission  of  a  horrid 
crime ;  but  it  would  be  of  dangerous  conse- 
quence to  allow  of  bloodshed  under  colour  of 
passions  which  men  ought  to  subdue,  or  of 
drunkenness  which  they  ought  to  avoid,  or  of 
a  sudden  vicious  turn  or  mind ;  and  therefore^ 
in  the  Roman  law,  whoever  committed 
slaughter  dolo  malo,  whether  deliberately  and 
upon  forethought,  or  of  suddenty,  was  to  be 
punished  ex  lege  Cornelia  de  Sicariis .  And  to 
shew  that  it  was  sufficient,  that  the  design 
should  only  precede  the  act  from  which  death 
followed,  and  not  the  meeting  of  the  persons, 
as  the  acts  of  the  mind  are  only  to  be  known  by 
external  circumstances  ;  the  kind  of  weapon, 
in  the  same  manner  as  in  the  law  of  Moses,  was 
sufficient  to  found  a  presumption  of  sui!li  pro- 
potiium,  as,  joined  with  the  act  of  killing, 
brought  the  manslayer  under  the  pcena  legis 
Cornelia!:  So  in  the  1.  1,  §  3,  ff.  ad  le|vem 
Corneliam  de  Sic.  it  is  said,  **  Si  giadium 
strinxerit,  et  in  eo  percusscrit,  induhitat^  occi- 
dendi  animo  id  eum  admisisse  ;'*  and  if  prior 
forethought  had  been  necessary,  the  kind  of 
wea|K)n  could  not  possibly  have  foundinl  a  suf- 
ficient presumption  :  But  as  it  manifestly  made 
appear  the  intention  io  kill,  whether  thai  intiMi- 
tion  had  its  birth  from  passion  or  drink,  it  «%as 
voluntary  slaughter,  done  dcditd  vperd^  Hud 
tiierefora  to  be  pnniiihed  capitally.      And  the 


TO] 


9  QEOKG^E  II. 


IVial  ^Jamtt  Carni^t 


[ 


fUiMge  cited  from  the  learned  Voet,  rather  I 
lNHi6nii«  this  doctrine,  That  if  in  rixd,  which 
nuaC  auppoaeauddenty,  the  peraon  who  inflicts 
•d  the  mortal  woand  wan  diaoovered,  he  waa  to 
be  aubjected  to  the  ordinary  paniahment  And 
the  aame  author,  §  9.  of  that  title,  obaerres, 
That  though  aucb  aa  commit  alaugbtcr,  calore 
irmcundUf  may  be  aaid  impelu  deUnquere; 
yet  there,  "  neque  judicium,  neqne  aaaenaua 
•oimi,  Deque  foluntaa  deeat ;"  and  saya,  That 
A  peraon  profoked  bv  verbal  injuries,  how 
great  eoever,  waa  not  nee  from  the  p^ena  ordi" 
iiaria.  And  the  truth  ia,  if  paaaion  and  pro?o- 
eation  were  aufficient  to  excuse  alanghler,  K 
were  in  ?ain  to  lav  down  the  rulea  ao  anxioualy 
conceited  in  the  lawa  conceminfr  the  <*  mode- 
ramen  inculpate  tutel»,"  where  the  alayer 
muat  proTe  that  he  waa  "  conatitutoa  in  peri* 
culo  Tite.*'  And  had  the  caae  atood  otherwise 
in  the  Roman  law,  it  could  never  hare  been 
doubted,  when  jealousy  waa  the  rage  of  a  man, 
and  adultery  the  higheat  provocation  a-^inst  a 
husband,  and  a  real  iniury ;  the  qneatioo  could 
■ever  have  been  stated  to  be  determined  by  the 
emperor,  aa  in  L  38,  ff.  §  8,  ad  le|pm  Juliam  de 
adult.  Whether  a  husband,  **  impetu  tractus 
doioiia,  uxorem  in  adulterio  depreiienaam  in- 
lerfecerit,"  was  liable  to  the  poena  legia  Cor- 
Beli«  de  Sicariis  P  And  who,  by  that  decision, 
upon  the  peculiar  circumataucea  of  the  case 
wtta  ezeemed  [ezempteil],  and  never ihelesa 
made  auhjenl,  si  loci  kumilii,  of  being  condemn- 
ed ad  opu9  perpetuum,  and  if  honestior  was  to 
be  condemned  rtlegari  in  iusulam.  But  as  the 
case  muat  be  determined  uiion  the  law  of  Scot- 
land, il  ia  unnecessary  to  dwell  too  long  upon 
the  argnmenta  drawn  from  the  Roman  law. 

3tio,  It  was  contended  for  the  pannel,  "  That 
by  the  law  of  Scotland,  slaughter  and  monler 
were  of  old  different  apeciea  of  crimea,  and 
only  murder  committed  upon  forethought  fe- 
lony was  properly  computed  murder,  and 
punished  as  such ;  btit  tliat  alaugbter  com* 
mitted  upon  suddenty,  or  chaud  tnelle,  and  in 
rijrA^  was  deemed  only  homicidium  culposum^ 
and  not  punishable  by  death."  And  to  support 
tliia  position,  several  acts  of  parliament  were 
appealed  to,  by  which  it  was  statuted,  that 
murder  was  to  be  capitally  punished ;  kmt  chaud 
mellff  or  slaughter  comtxiitled  upon  suddenty, 
waa  to  be  punishable  according  to  the  old 
laws :  and  that  in  this  case,  if  the  pannel  bad 
even  killed  Bridgeton,  at  whom  he  aimed  the 
thrust,  in  the  circumstances  above  set  forth,  it 
waa  not  murder  u|Km  forethought,  but  upon 
iuddenty  and  high  provocation. 

To  this  it  was  answered,  That  thia  doctrine, 
so  directly  contrary  to  the  received  opinion, 
had  little  countenance  from  tite  old  lawa  and 
acts  of  parliament,  less  from  the  constant 
practice  before  the  act  of  parliament  king 
Charlea  2,  in  the  year  iG61,  and  stood  in  plain 
contradiction  to  tliis  last  law,  and  the  constant 
practice  and  repeated  decisions  of  the  Court  of 
Justkxary  from  that  time  down  to  tbia  day. 

By  the  old  kw,  particularly  chap.  3,  of  the 
ifttitalatea  of  kiag  Robert  1,  intitUed,  Men 


condemned  to  the  Death  ehonid  not  be  i 
deemed,  **  It  ia  statoted  and  ordained,  |fif  a 
man,  in  any  time  Coming  oc  bygane,  is  co 
vict  or  attainted  of  alaugbter,  reif,  or  any  otli 
crime  touching  life  and  limb,  common  joati 
shall  be  done  upon  him,  without  any  n 
some."  Here  slaughter  in  general  is  mc 
tinned,  and  justice  waa^o  lie  done  upon  t 
person  convict  of  it,  and  the  punishment 
Uie  title  was  plainly  dcAth :  tof  that,  at  coi 
mon  law,  alaugbter  in  ti^eneral  waa  capH 
The  next  Mtragraph  does  indeed  save  the  kiuj 
power  (which  muat  be  the  power  of  pardonim 
and  the  liberties  granteil  by  the  icing  to  I 
kirk  and  kirkmen,  and  other  lorda;  whi 
muat  be  underatood  of  special  immunities 
the  caae  of  manalaughter:  for  no  privilege  « 
to  protect  againat  murder  upon  foretbougl] 
and  the  exception  confirms  the  rule. 

By  chap.  43,  of  the  atatutea  of  king  K 
bert  3,  it  is  atatuted,  "  That  na  man  uae  ei 
destruction,  hershipa,  burning,  reif,  alaugfat 
in  time  to  come,  under  the  pain  of  tiuel 
life  and  gooda :"  whereby  the  pain  of  del 
ia  clearly  made  the  puniahment  of  alaugbi 
in  general.  And  in  toe  im mediate  subseqoi 
chapter,  the  aheriff  was  to  take  diligent  inqi 
aition  of  destroyers  of  tlie  country,  orencn 
had  deatroyed  the  king's  lieges  with  herahij 
slaughter,  &c.  and  was  to  take  bail  from  tbo 
if  arrested,  to  compear  at  the  next  justii 
ayr ;  and  if  bail  waa  not  given,  the  sheriff  a 
to  put  him  to  the  knowledge  of  an  aasiz 
'*  And  gif  he  be  ta^nt  with  the  assize  for  < 
an  trespassour,"  it  is  said,  "  He  shall  be  ofl 
demtieu  to  dciath  :"  which  seems  only 
relate  to  manslaughter,  and  not  to  mort 
upon  forethought  telony,  which  was  one 
the  pleas  of  the  crown,  to  be  tried  ouly  beA 
the  Icing's  justiciar ;  as  i*  evident  from  dH 
11,  kiog  Malcolm  S's  laws,  and  chap.  1 
and  15,  whereas  slaughter  might  be  tried 
the  aheriff,  where  there  was  a  certain  aocus 
as  appeara  from  book  1,  of  the  Uegiam  Al 
jestatem,  chap.  1,  §  7,  8,  9. 

There  are  sundry  others  of  the  old  statut 
that  seem  plainly  to  pre- suppose  that  alaog 
ter  was  capital,  and  particularly  these  of  Ale 
ander  2,  chap.  S,  §  3,  4,  5,  6.  And  so  Ske 
in  his  Treatise  of  Crimes,  tit.  2,  chap.  6,  sa] 
'*  Tliat  alaugbter  in  rixUf  or  chaud  meiie^' 
generally  punished  by  «leath,  and  confucott 
of  the  moveable  ;;:ooda  pertaining  to  the  tn 
pasHOur;  but  with  this  dilforfcuce,  that  t 
girth  or  sanctuary  wan  no  refuge  to  him  w 
commits  slaughter  by  torethoiight  felony,  I 
he  should  be  delivered  to  the  judge  ordmai 
to  undcrly  the  law:"  which  plainly  appei 
from  act  23,  pari.  4,  Jamca  5,  whereby  nil 
ten  of  girth  are  ordained  to  deliver  up  su 
peraDus  as  are  guilty  of  murder  upon  foi 
thought  felony.  An(l  it  is  in  vain  to  foa 
upon  Law  90,  |Nirl.  6,  James  1,  which  m 
in  the  end,  **  Gif  it  be  forethought  felony, 
shall  die  therefore;"  because  the  act  relatei 
ail  manslayers;  and  though  that  partiea' 
and  moii  atrocioai  ipeciei  be  mentmied, 


t/J  Jar  the  Murder  qfihe  Earl  of  Straihmore.       .   A.D.  1728. 


Ar  winch  the  maiJeier  shookl  die,  yet 
■ffonmC  will  not  hold,  that  therefore  no 
rad  of  sUoghter  was  capital :  for  it  is 
aaiii  iu  the  geoeral,  that  if  the  slayer  is 
with  red  hanil,  the  law  shall  be  done 
pitfaia  that  son ;.  which  cannot  be 
of  a  crime  not  capital.    And  sir 
Maefceoane,  iu  his  obserr Ations  upon 
lysg  **Tbis  may  seem   to  imply,  that 
4k  mi  for  murder  committed  wifchoat 
felony ;  but  this  holds  not  in  our 
BMirder,  though  committed  without 
-^hft  fehiny,  is  punishable  by  death, 
eem/L  k  vas  either  casual,  or  in  self-defence." 
Tie  act  51,  pari.  3,    James  1,  was  im- 
pnpsrij  fiwiided  on  by  the  pannel's  procura- 
IMS ;  Mr  that  act  does  no  more  than  extend 
Ibt  Mbesee  between  forethought  felony  and 
dmad  wteUe  to  all  transgreisions  as  well  as 
imklar;  as  sir  George  Mackenzie  obserres 
^pi  that  law,  where  he  says,  That  cJiaud 
■kar  hamieidiwn  in  rixd  commissum,  is  ca- 
lU  if  oar  present  law. 
^     crimioals  who  resorted  to,  and  took 
in  charchca,  had  protection,  thou|[h 
tnmta  were  capital,  is  eitremely  plam 
chap.  6,  of  the  statutes  of  K.  Alez- 
f,  where  it  b  said,  **  That  thie?es  and 
who  fly  to  haly  kirk,  if  moved  with  re- 
he  confess   that  he  has   heavily 
I  for  the  love  of  God  is  come  to  the 
of  God  for  safety  of  himself,  he  shall 
nee  in  this  manner,  tfiat  he  shall  not 
fife  Bor  limb,  but  restore  what  he  had 
ad  satisfy  the  king,  and  swear  upon 
Evangel,  that  for  thereafter,  they  shall 
*  BMumit  reif  nor  thef\ ;  but  if  he  declared 
"  ianocent,  he  was  to  be  tryed."    And 
ii  4i  Imi  paragraph  of  that  chap,  it  is  said, 
**U9nn»  noanslayers,  &c.  if  tbey  fly,  in 
nascr  Aresaid,  to  the  kirk,  the  law  afore- 
mHikaHhe  kept  and  observed  to  them." 

Awe  seems  to  have  been  this  other  dlflfer- 
■ee  MO,  by  the  books  of  the  old  law  between 
■arte' upon  forethought  and  slaughter,  that 
iW  Inal  of  murder  was  summar,  whereas 
■saiiaaghter  could  not  be  tried  till  af\er  forty 
^yi,  as  appeals  by  the  statutes  of  llobert  2, 
fcwa  cbap.  3,  to  chap.  9. 

After  the  Reformaiioo,  when  i\ie  jus  aiyUy 
Watffiy  given  tu  churches,  dro|ipeil,  the  dis- 
liacfaoB  between  murder  and  inauslauf^htcr 
«is looked  on  with  less  attention,  and  libels 
•cieoommonly  framed  indifferently,  for  mur> 
^,  aod  slaughter  in  general,  without  any 
■tatioo  of  furethought  felony  ;  nor  was  it 
ecr  objected,  that  malice  or  premetlitate  ile- 
^  was  requisite  to  make  the  crime  capital : 
M  erimiojiu  were  punished  to  death,  where 
the  proof  there  was  not  a  colour  or  pre- 
of  forethought,  or  any  premeditate  de- 
as  will  appear  from  looking  into  the 
. — ofadjournai.  And  many  instances  nii^ht 
wgifco,  particularly  in  the  case  of  Jean 
famt  ajFaiDst  William  Eraser,  the  last  of 
My,  ifrii ;  where  the  pannel  was  condemned 
^  as  rstrajudicial  confession,  admiiiicu- 
«UL  XVII. 


lated  with  other  circumstances ;  in  which  he 
set  forth  the  fact,  that  the  tiefunct  and  be  had 
some  little  quarrel  about  a  staff;  and  hearinir 
that  lie  had  murdered  hia  brotiier,  he  came 
into  a  house  where  the  defunct  was ;  and  that 
either  the  defunct,  or  some  other  tliat  was  by, 
took  the  pannel  by  the  arm,  to  hold  hiiu: 
having  freed  himself,  he  aimed  a  stroke  with 
a  whinger  at  the  defunct's  arm ;  but  missing 
it,  he  stmck  the  defunct  about  the  pap ;  and 
upon  this,  proof,  he  was  found  guilty,  and 
executed. 

In  the  case  of  Bruce  agrainst  Marshall,  the 
Srd  April,  1664,  slaughter  was  libelled,  and 
he  was  condemned  upon  his  own  judicial 
confession :  from  which  it  appears,  that  he 
was  so  far  from  having  any  forethought,  that 
he  suffered  not  only  the  greatest  provocation 
in  words,  but  was  even  oeat  with  hands  and 
feet  by  the  defunct  while  he  was  on  the 
ground;  but  at  last  getting  up,  and  (as  the 
confession  bears)  being  overcome  with  passion, 
he  drew  a  knife,  and  struck  at  him  in  two 
several  places  of  his  body,  whereby  be  died. 
And  upon  this  confession,  where  there  was 
tuddenty,  provocation  and  passion,  he  was 
brought  in  as  guilty,  and  condemned  to  be  be- 
headed. 

The  law  remaining  somewhat  ancertain  con- 
cerning casual  homicide,  and  there  being  no 
longer  any  beneflt  of  girth  as  formerly ;  ia 
the  year  1649,  an  act  was  passed  during  the 
usurpation,  for  removing  all  question  and  doubt 
that  might  thereaAer  arise  in  criminal  pursuits 
for  slaughter,  onlainini^,  that  the  cases  of  ho- 
micide aAer-following,  viz.  casual  homicide, 
homicide  in  lawful  defence,  and  homicide  com- 
mitted upon  thieves  and  robbers,  should  not 
in  time  coming  be  punished  by  death,  not- 
withstanding any  laws  or  acts  of  parliament, 
or  any  practick  made  heretolbr*?,  or  observed  in 
punishing  of  slaughter.  And  this  passi'd  int«> 
a  law  after  the  Jtestoration  in  the  ^car  16(31 ; 
and  at  the  same  time,  all  decisions  given  con- 
form to  this  act,  since  the  4th  of  February, 
1649  years,  are  dcrlared  to  l>e  sufRcieut  to 
secure  all  parties  interested,  as  if  the  act  had 
been  of  that  date ;  which  was  necessary,  be- 
cause the  acts  tiurin^f  the  usur|>ation  had  been 
rescinded:  and  tiiis  law  has  ever  been  looked 
upon  as  the  standard.  And  the  practice  of 
the  Court  of  Jusiiciury,  since  that  time,  clearly 
deuionstrates,  that  slaughter  of  suddenty,  and 
slaughter  upon  provocation,  which  could  not 
be  brought  under  one  or  other  of  the  particu- 
lars there  mentioned,  have  been  taken  to  be 
capital. 

The  procurators  for  the  pannel  here  <d)serv- 
ed,  **  That  though  in  the  cases  there  mention- 
ed, the  law  oi-dained  slaughter  not  to  he  capital, 
yet  it  neither  SHid,  nor  supposed,  that  the  for- 
mer law,  whereby  paunels  were  entitled  to 
plead  afi;ainsi  a  capital  punishment,  was  there- 
by abrogated,  but  only  statuted  in  the  caves 
there  mentioned." 

Tu  this  it  was  answered,  that  the  iiarrativs 
of  the  statute  was  for  removing  ot  all  ^utfttioa 

6 


88] 


1 6EOR6E  IL 


Trial  of  Jamei  Canui^ 


[81 


•Bd  ionU  thit  may  Mmt  thereaAor  io  eriumial 

riuits  fortlaughier,  nd  oooKqoently  cumol 
nppottd  to  liATe  left  doabCfol  cases,  ihat 
the  paimel'f  proeonton  Hiiist  adnil  were 
not  so  dear  as  easaal  bomieide,  and  homicide 
ia  defeace:  nay,  the  law  seems  to  suppose 
prdty  plain ly,  that  all  slaoghter  by  the  laws 
and  actfc  of  parliameDt,  or  practicks,  was  capi- 
tal, not  declaring  what  was  law  from  any  other 
period  than  the  year  1640,  but  eiiactiog'  the 
same  with  a  nan  obftmnttf  and  judging  it  neces- . 
sary  to  confirm  the  decisions  that  had  past, 
conform  to  that  act  dnriog  the  usurpation, 
which  would  bare  been  rain,  if  it  bad  not 
been  at  least  doubtful,  whether  casual  homicide, 
homicide  in  lawful  defence,  and  slander  com- 
miitod  upon  thieves  and  robbers,  did  not  sub- 
ject those  guilty  to  the  pain  of  death :  and  if 
those  degrees  of  homicide  were  so  much  as 
doubtliil,  it  is  not  possible  to  conceire  that 
ekaud  melUf  or  slaughter  committed,  dedM 
oper£t  though  without  IbrKhought,  was,  by  the 
law  of  Scotland,  not  capiul.  Or  if  it  should 
be  supposed  to  hare  been  doubtful,  whether 
tliese  last  dej^rMS  of  homicide  were  capital : 
that  the  legutlature,  upon  a  narrative,  that  all 
question  and  doubt  that  might  arise  hereafter 
in  criminal  pursuits  for  slaughter,  should  be  re- 
moved, would  have  enacted  in  the  clearer  cases, 
with  a  fion  obiiante,  and  left  the  more  difficult 
In  the  dark,  as  surely  the  greatest  advocates 
lor  slaug^liter  on  snddenty  must  admit,  that,  at 
least,  it  is  more  culpable  than  either  homicide 
Bicrely  casual,  or  homicide  in  lawful  defence. 

The  argument  drawn  from  the  rubrick  of  the 
act,  which  mentions  degrees  of  casual  homicide 
only,  can  conclude  no  more,  than  that  the  title 
Is  imperfect ;  and  it  would  be  resting  too  much 
upon  an  argumeot  d  rubro,  to  make  it  defeat 
what  is  said  in  the  law,  that  all  questions  con- 
eeminfi^  slaugliter  were  thereby  to  be  removed, 
and  which  opposes  casual  homicide  to  homi- 
cide in  lawful  defence ;  and  conseouently  can- 
not under  the  u'ords,  '*  casual  homicide,"  com- 
nrtlieiid  all  slaughter  not  upon  forethought  fe- 
lony. And  sir  George  Mackenzie  in  his  ohser- 
yations  upon  the  act  takes  notice,  that  the  title 
is  very  ridiculous,  and  consequently  no  argu- 
ment can  be  drawn  from  it. 

One  thing  it  may  not  be  improper  to  notice, 
9s,  that  if  killing  by  forethouglit  felony  was  the 
only  species  of  slaughter  capital,  the  crown 
was  disabled  from  pardoning  any  capital 
slaughter  w  hats«f mover,  which  does  not  appear 
to  have  been  tlie  o|iinioii  of  our  lawyers. 

As  to  the  drcisious  subsequent  lo  this  law, 
they  will  he  found  entirely  agreeable  to  tlie 
doctrine  now  laid  down ;  sir  George  Mackenzie 
observes,  that  though  many  lawyvrv  are  jiosi- 
tive,  that  though  homicidium  in  rira,  even 
where  the  author  of  the  plea  {»  known,  may 
by  ihii  rigor  of  law  hv  punishcil  by  death,  yet 
that  no  contitr}'  ii^c^  litis  rii^or ;  yet  he  remem- 
brrcd,  that  in  William  [ioiigluss*s  case,  this 
was  urged,  and  albeit  it  was  not  proven  that 
he  was  the  killer,  Vf^  the  assize  found  him 
4(oiIty,.aiid  ht  thcc«i](iuD  died.    This  is  a  case 


nsore  fiivooraUe,  than  where  the  peraon  thil 
gave  the  mortal  woond  is  known,  tfaMHi^h  gtwm 
suddenly,  and  even  upon  provocation;  wai 
therefore  shews  what  our  law  is,  and  with 


little  reason  the  procuratora  for  the  nan»d 
maintain  their  argnment  upon  the  law  of  Seat* 
land. 

In  the  case,  his  majesty's  advocate  agwMl 
Nioulsoo,  the  24tb  June,  1673,  murder  «ad 
slaughter,  without  forethought,  were  cbaifd 
upon  Nicoisoo,  the  pannel  $  and  hia  pioo— 
tors  pleaded  the  benefit  of  the  act  of  parliaml 
anent  casual  homicide,  in  the  aef  eiml 
thereof,  he  being  in  a  condition  that  he 
not  able  to  remmiber.  To  this  it  was 
ed,  that  the  defence  was  not  relevant,  in 
the  homicide  could  not  be  said  to  be 
such  as  Uie  case  of  throwing  of  stones  mm 
dikes,  and  accidentally  killing  a  paasesfvi 
and  the  pannel  having  afterwards  propooed  € 
defence,  that  being  in  use  to  carry  a  gwB  ss'ii 
fowler,  and  calling  accidentally  for  meat  ts  li| 
dogs  at  a  mill,  the  defunct  fell  upon  himy  sal 
offered  to  secure  him  as  a  French  soldier,  sslt 
to  be  one ;  in  the  stm^e,  his  gun  being  km 
bend,  went  off,  and  killed  the  defnnct:  ~~^ 
the  libel  and  defence  were  found  relevant, 
it  appeared  upon  the  proof,  that  Nicolsea 
drunk,  and  that  there  was  no  previous  qiisnrii 
but  taking  exce|»tion  at  somewhat  the  drfsMl 
said,  he  shot  him  with  his  gun ;  and  bv  ihi 
verdict  of  the  assise,  '<  he  was  fonml  gnfty  d 
the  slaughter  committed  u|M>n  the  defqncl/j 
and  sentenced  to  have  his  bead  struck  off.lv 
the  Grass-market ;  which  shows  that  nsilh^ 
drunkenness  nor  suildenty  is  a  relevant  dffiMJ 
against  the  jMtaa  ordinana  in  slaughter. 

And,  in  the  case  of  Murray  contra  GiM 
10th  June,  1678,-  Uie  lords  ''  found  the  IM 
relevant,  and  that  there  was  no  necessity  of  sq 
distinct  probation  for  pro?  ing  precogitate  atij 
lice;"  which  clearly  shows  that  slaughM 
other  than  upon  forethouglit,  was  capital.  Am 
to  show  that  provocation  and  passion  ars.  ail 
received  as  defences  against  the  ptma  9rdmm 
ria,  a  multitude  of  decisHHis  might  be  bremi^ 
particularly  in  the  case  of  Aird,  who  was  m 
dieted  in  1693,  for  the  slaughter  of  AgWi 
Bayne,  having  given  her  some  strokes  oo  ds 
side  and  belly  with  his  foot,  by  which  sb 
fell  into  fainting-fits,  and  immediately  disd 
The  defence  was,  **  great  provocatkm  and  e» 
sual  homicide  :*'  provocation,  in  as  far  as  shi 
threw  a  chamber  pot  in  his  face ;  and  whea  hi 
gave  her  hard  words,  she  and  her  neighboM 
fell  upon  him,  and  beat  him  ;  upon  which  % 
gave  her  the  strokes  above  mentioned.  And  i 
that  trial  it  was  argued,  there  was  no  snisil 
occidendi^  no  previous  malice,  no  mortal  wea 
pon;  and  the  texts  from  Scripture  urged  I 
ticfencc  of  the  present  pannel,  and  the  arjga 
ineuts  from  the  civil  law,  and  from  onr  m\ 
acts  of  parliament,  were  urged :  neyerthcb 
Uie  lords  <*  found  the  liliel  relevant,  rsfil 
the  defences ;"  and,  upon  the  proof,  he  i 
sentenced  to  die. 

In  the  case  of  Williaa  Ganaichael  ie  108| 


•]         Jar  the  Mturierofthe  Bart  ofStratltmore.  A.  D.  17S8. 


[W 


WM  fonnded  mi  to  excuse  a  p€mm 

and  Ibffethoagbt  wst  neither  libelled, 

I ;  and  the  loide  found  the  libel  rele- 

L  ■poB  the  proat'y  he  was  sentenced  to 

1095,  Qeoige  Cnnring^,  writer  in 

raa  indicted  for  the  crime  of  moro 

lUffhtcrof  Patrick  Falconer;  the 

'  oBeted  for  the  panael,  upon  the 

tba  old  law,  between  forethou|rht 

rl/e,  were  offered;  nevertheless  the 

Wbh  foond  relevant,  and  tlie  assise  re- 

lariavcrdietgniltyof  manriaughter;  upon 

sAiih  ha  was  coodemncd  to  die. 

MthacBseaf  Burnet  of  Carlops,  the  S2d 

htmru  17  llf  thosgh  adefonce  was  sustaiued, 

l<*siftsl  withowl  foretlioni^t  was  found  re- 

ImsI:  md  in  thai  of  Hainiltoa  of  Green,  the 

Sib  Jane,  1716,  the  pannel  offsred  to  prove, 

An  ha  was  aeddeBtally  at  the  house  of  Tho- 

.  of  whose  murder  he  is  accus^i,  at 

iihellcd,  with  some  of  his  acquaint- 

p  .ad  had  no  deadly  weapon  aloo||f  with 

tof  that  hm  became  inebriated  to  a  great  de- 

pBbSBd  havii^  left  the  house,  and  returned  to 

itti  the  slip  or  cover  of  the  sheath  of  a  sword^ 

ii  drfanct  gave  him  most  indecent,  injurious 

■i  HBrrihuH  laugnage,  and  persisting  in  it, 

poshed,  or  struck  at  him  with  his 

having  the  scabbard  thereon,  that  he 

•  to  beKeve  had  a  crampct  upon  it: 

_  nil]  more  and  more  provoked  by  re- 

IM^s^iioaa  words,  to  protect  himself  from 

Mhv  iiwalfiice  he  had  reaaun  to  look  for,  the 

pssi  tfiU  raosaiiiiii^  on  horseback,  the  de- 

mm  iwhad  bimseU  upon  the  sword.     And 

tkii  orcHBistantiate  fact  was  offered  to  be 

f.     Nevertheless  the  libel  was  fouod  rc- 

IwM^aaA  the  pannePs  baill  dcfencus  re|>clled, 

■^ spOB ibe  prcMif,  was  sentenced  to  have  his 

^ud  swwcd  from  his  body  :  and  was  accord- 

t'Uaded. 
iheeaae  of  Thoouis  Rots  and  Jaifrey  Uo- 
kM%  the  SOth  July,  1716,  it  was  pled  tor  the 
isneli,  that  being  recruits  lately  come  from 
Mi^mi  to  Scotland,  and  not  knowing  the  way, 
Ihey  Mkcd  the  defunct  tbe  road  to  ^inbun^h, 
^'      '    '      to  shew  it,  and  one  of  tbe  |Min- 


Mb  cxp(«talating  with  him,  why  he  treated  a 

th( 


c: 


so,  that  came  to  serve  the  king  ?  He 
very  disrespectful  words  with  respect 
lahis  saajesiv  ;  and  one  of  the  pannels  having 
'  bioi  Tiflain  for  such  opprobrious  ezpres- 
be  caoie  up  to  Ross,  and  with  his  fist 
bin  a  blow  on  tbe  face,  and  then  pulled 
down  to  the  ^ond,  and  beat  him  with  a 
slidi,  to  the  immioent  danger  of  his  life, 
f.  That  he  should  never  go  alive  out  of  bis 
c  and  Roberts  having  come  to  his  assist- 
,  aad  lesooed  him  a  little  ;  Ross,  tbe  pan* 
fate  the  dcAioet  a  wound  with  a  knif^, 
Mof  be  died.  Ross  pleaded,  there  neither 
■ar  eoald  be  forethought  fokm  v,  or  nreme- 
■  Baliee,  agahist  a^  person  whom  lie  bad 
V  sees  before:  thai  it  was  committed  upon 
ttiinty  :  thai  be  had  the  highest  provoca- 
t^bnh  iMhal  mi  mIj  Neveitiw)M>  by  tbe 


interlocutor,  Ross,  the  pannel,  his  giving  the 
wound  was  found  relevant  to  infer  the  pain  of 
death.  And  tlie  defence  from  provocation  by 
words,  and  receiving  a  blow  on  the  face^  bch 
ing  pulled  down  to  Uie  ground,  and  beat  with 
a  great  sticJc  to  the  danger  of  his  life,  jointW 
sustained  relevant  to  restrict  the  libel  to  an  arbf* 
trary  punishment,  was  found  to  be  elided  by 
the  reply,  that,  at  the  time  of  giving  tbe  woand 
te  the  defunct,  the  defunct's  bands  were  behi 
by  Jafirey  Roberts,  the  other  pannel.  From 
whence  'tis  evident,  that  slaughter  upon  sud« 
denty,  in  rvrd  or  chaud  melle^  and  by  a  person, 
who  had  received  the  greatest  verbal  and  real 
injuries,  even  beyond  that  of  being  thrown  into 
the  kennel,  of  the  nature  that  is  set  forth  into 
which  the  present  pannel  was  tbroi^Hi  is  by  that 
interlocutor  found  homicidium  doloium^  ami  not 
cuiposttm^  but  capital. 

And,  in  a  very  late  trial,  in  the  case  of  Da- 
vidson, the  soldier,  slaughter  n|Hin  the  greatest 
soddenty  was  sustained,  and  he  was  upon  the 
proof  executed. 

And  the  judgment  given  in  1717,  in  tbe  rase 
of  Brock  and  Lindsay,  determines  this  point  be- 
yond all  dttipute.  These  pannels  were  ac- 
cused of  the  murder  of  one  Anderson :  and  ai 
the  libel  did  expressly  set  forth  a  quarrel  and  a 
struggling  betwixt  the  two  pannels  and  tlic  de- 
funct, which  made  it  ilirectly  an  homicidium  in 
rix&  ;  80  the  pannels,  at  least  Lindsay,  offered 
a  pretty  strong  defence,  namely,  |liat  the  de- 
funct, without  any  provocation,  just  led  them, 
and  struck  at  Lindsay,  and  beat  liini  down  to 
the  ground  ;  and  it  was  while  thi'y  were  on  the 
ground,  the  wound  was  given.  And  tbe  de- 
fence was  pled  for  two  several  pur|iotics  :  First, 
that  the  crime  was  not  capital,  because  no  fore- 
thought felony.  And,  3dly,  to  entitle  them  to 
the  act  of  indemnity,  under  which  all  homi- 
cides were  included,  except  willul  murder,  and 
slaughter  of  forethought  felony.  And  the  in- 
terlocutor uiion  the  relevancy  v%asinthir  words, 
"  Find  the  pannels,  or  either  of  them,  at  the 
place  and  time  libelled,  their  giviug  Archibald 
Anderson  a  cut  or  wound  in  the  neck  or  throat, 
or  other  mortal  wound,  with  a  knife  or  other 
mortal  weapon,  where<if  he,  the  defunct,  soon 
thereafter  died  ;  or  that  the  said  pannels,  both 
or  either  of  them,  were  art  and  part  therein,  re- 
levant to  infer  the  pains  of  death,  and  other 
pains  libelled  :  and  re|)cl  the  liaill  defences  for 
the  ]>annel,  excepting  that  defence  pled  u|>on 
his  majesty's  graciouti  act  of  indemnity  ;  nuent 
which  the  said  lords  8upersede«l  to  give  their 
judgment,  till  the  conclusion  of  the  probation, 
and  return  of  the  verdict." 

This  then  is  an  undoubted  authority,  that 
homicide  may,  by  the  law  of  Scotland,  infer  the 
|iain  of  death,  though  it  be  neither  wilful  mur- 
der, pro|Hfrly  so  Hpeuking,  nor  furethonsrlit  fe- 
lony ;  otherwiKe  the  Court  could  not  have  found 
the  crime  relevant  to  inter  the  pains  of  death, 
and  at  the  same  lime  reserve  the  consideration, 
whether  tliero  was  any  forethought  felony,  or 
not. 

Upon  this  interlocutor  a  proof  wna  adduce4e 


87]  4  GEORGE  II. 

and  a  verdict  returned,  finding  Lindsay,  one  of 
the  panneh,  guilty ;  and  yet  the  Court  havinj; 
returned  the  cousidcratiun  of  the  indemnity, 
found  him  inlitled  to  the  benctit  of  it :  that  is, 
in  other  uronlv,  they  found  the  crime  was  nei- 
Ibrr  voluntary  munler,  nor  slaughter  of  fore- 
thought ielony.  80  that  it  m  plain,  had  not  the 
indemnity  intervened,  Lindsay  must  have  suf- 
fered death  for  killing,  though  there  was  no 
previous  design  of  forethought. 

And  an  iiitcrlocntor  H)>on  the  relevancy, 
nmch  to  the  same  purpose  with  the  former  one, 
was  also  pronounced,  the  31st  of  August,  1721, 
in  the  case  of  Samuel  Matthews,  a  soldier  ; 
where  the  libel  was  found  relevant  to  infer  the 
pain  of  death,  reserving  the  consideration  of 
another  act  of  indemnity  then  pled  for  the 
pannel. 

It  would  be  in  vain,  and  lengthen  a  psper  al- 
ready too  long,  to  run  through  all  the  decisions 
which  shew,  that  neither  the  drunkenness  of 
the  nannel,  nor  provocation  given  him,  nor  the 
suddenty  upon  which  the  fact  was  committed, 
can  afford  a  defence  to  the  pannel,  to  exculpate 
the  slaughtei',  or  lessen  the  ordinary  punish- 
ment ;  and  therefore  the  pyrsoers  shall  leave 
the  first  branch  of  the  defence  with  the  lords, 
with  this  observation,  that  if  it  is  really  founded 
in  law,  by  looking  into  the  books  of  adjournal, 
one  would  think  our  law  has  hithertp  been  very 
ill  understood. 

Sdo,  It  was  ofi*ered,  what  indeed  is  alone  ap- 
plicable in  the  present  case,  "  That  if  the  pan- 
nel intended  only  to  wound  or  kill  Bridgeton, 
and  by  misadventure  the  deceast  earlof  fiSrath- 
more  was  wounded,  and  of  that  wound  died, 
the  pana  ordinmria  was  not  to  be  inflicted.'^ 

It  was  answered,  that  according  to  the  rules 
of  the  civil  law,  he  who  intending  to  kill  one, 
kills  another,  is  nevertheless  subject  to  the 
p<na  ordinaria  ;  so  Julius  Clams  delivers  his 
opinion  in  his  Receple  Sententifs  lib.  5.  § 
homiciilium,  N.  6.  where,  aAer  having  taken 
notice,  that  the  contrary  was  indeed  the  opinion 
of  some,  adds,  **  8ed  cert^  ego  si  casus  contin- 
geret,  illi  facerem  caput  amputari."  And  the 
learned  Mathipus,  lib.  48.  lit.  de  Sicariis,  §  12. 
^ives  the  same  opinion,  observing  that  the  act 
18  consummate,  there  is  animus  or  design  of 
killing,  and  death:  tliatit  would  be  aridiculoua 
defence,  that  the  pannel  intended  to  steal  the 
goods  of  one  man,  but  happened  to  steal  those 
of  another ;  or  against  adultery,  that  he  in- 
tended to  defile  one  man*8  wife,  and  happened 
to  light  upon  that  of  another «  and  he  thinks  it 
is  as  unrcusonable  to  hope  for  safety  from  this 
defence,  tlint  the  iiiraniug  was  to  kill  one,  but 
another  receiveil  the  stroke  and  died. 

Voet  in  his  commentary  agrees  with  them, 
lib.  48,  tit.  K,  ne.  2,  where  he  says,  that  there 
is  ro  diilemct;,  "  Sive  vulnua  in  titium  di- 
rectum ab  eo  declinatum,  Mievio  in  proximo 
•tanti  Jethale  fuerit,  sive  dianiqne  oocidatur  qui 
csedis  impediendcB  causa,  aese  medium  inter 
agressorcm  et  defendentem  interposuerit :  quia 
pnevalet,  quud  principale  est,  nee  error  talis 
t^Ui^iBt  96cide&di  aBioioDi  amcadea  kge 


Trial  of  James  Camegief 

Cornelia  vindicandam."  And  for  this  ne 
founds  upon  the  I.  18,  §  3,  et  §  ull.  ff.  de 
and  1.  5,  s.  1,  ff.  de  servo  corrupto ;  bn 
the  authorities  of  Farinacius,  qua»t.  1 ' 
15G,  et  157,  as  also,  that  of  Fachinseus, 
zovittsand  fierlichius,  and  others.  An 
opinion  obviates  the  defence,  as  put  in  it 
favourable  light,  which  however  would 
very  delicate  proof,  that  the  defunct 
himself  between  Bridgeton  and  the  p 
and  receivcMi  the  stroke  aimed  at  the  othc 

The  learned  Sande,  lib.  .5,  ti^.  9,  dc 
which  has  this  title,  **  Qui  alium  pi 
occidit,  nihilominus  ordinaria,  leg.  C 
poBn&  afficiendus,"  says,  after  agreeing 
according  to  the  Roman  law,  such  error 
not  have  excused  the  murder,  **  Hoec  sei 
ubique  usu  obtinuit,  et  secundum  eam,  r 
mortem  condemnatus  etdecapitatus  est,' 
November  anno  1621;  and  there  alleii^ 
authority  of  Gomesius,  Emanuel,  801 
Carolus  Moliooeus,  "  Qui  alios  cumuli 
his  book  ad  consnetndines  Parisienses. 
sir  George  Mackenzie  in  his  Criminal 
Murder,  i  9,  says,  after  stating  the  qu 
"  Yet  1  think  he  should  die,  seeing  the  > 
of  killing  a  man,  and  not  any  particular  r 
murder ;  and  the  killer  intended  to  defac 
Almighty 'a  image,  and  to  take  from  the 
subject." 

It  is  nothing  to  the  purpose,  that  some 
authors  who  write  upon  the  Roman  la 
of  a  difi*erent  opinion,  in  a  case  not  detci 
in  words  by  the  text,  when  the  bulk  1 
commentators  are  of  the  other  side,  th( 
recent  and  of  greatest  authority ;  and  v 
appears  to  be  received  as  a  rule  by  the  p 
of  nations,  that  the  ordinary  punishment 
be  indicted.    And  it  may  not  be  impro 
observe,  that  the  cases  where  lawyers  < 
from  the  received  opinion,  are  generally 
tifiahle  homicide,  that  is,  where  the  bys 
was  killed,  when  the  killer  intended  to  e 
his  purpose  in  lawful  defence,  and  not 
micidoi  culposo,  which  is  the  highest  tlu 
nel's  case  could  possibly  be  pled  upon  pn 
tion,  according  to  any  opinion  delivered 
strongest  advocates  for  the  question  the 
pleads. 

That  it  is  not  always  necessary,  that  \ 
tention  should  be  directed  towards  the  ro 
done,  in  order  to  inflict  the  pain  of  death,  n 
evident  from  looking  to  the  xxi.  chap,  of 
ver.  22,  and  83,  where, "  If  a  woman  will 
is  hurt  when  men  are  striving,  and  m 
follow ;  life  is  to  be  given  for  life.'*  A 
kind  of  killing  now  in  question  was  plain! 
as,  according  to  the  law  of  Moses,  woii 
have  intitled  the  slayer  to  the  benefit  • 
city  of  refuge:  For  thouirh  in  the  xir 
of  l>eut.  ver.  4,  "  Whoso  killeth  his  neif 
ignorantly,  whom  he  hated  not  in  time 
is  said  to  be  intitled  to  that  privilege ;  y 
is  limited  immediately  with  an  exam 
manaUugbter  merely  caaual.  - 

The  proenrators  fiir  the  pannel  in 
«« That  Ibia  kind  of  kiUing  wai  inttrdy  < 


m 


Jar  the  Murder  of  the  Earl  of  Strathmore.  A.  D.  17^  [90 


bfwd,  and  witboat  the  intentioD  of  the  party : 
1m  m  the  caw  of  Musod,  in  the  year  1674, 
T  CariopB,  ami  several  otheni,  where  it 
there  was  do  intention  to  kill,  the  pu- 
mitiieateii." 
k«iaaanrered,That  where,  from  the  nature 
I,  and  meant  by  which  the  wound 
^ivtai  taking  all  the  circumstances  to- 
hoe  was  no  eridence  or  presumption 
fsancl  intended  death  to  any  person 
;  and  the  propontum  was  neither 
■or  oonld  be  presomed,  as  in  the  case 
jind  in  that  of  Burnet  of  Carlops, 
having  swords,  only  struck 
,  h  was  held  as  approaching  towards 
homictde.  But  tliat  can  never  be 
I,  when  the  wound  given  as  libelled 
swas  clearly  mortal,  and  the  instrument  the 
Mrt  Icfbal  [deadly];  and  the  decision  of 
Mipa,  cfCD  with  that  difference,  stands  single 
kftabsaks  of  adjournal. 

Ilvas  fiirtber  contended  for  the  pannel, 
^Hkh  animuM  oceidtndi^  and  death  follow* 
1%  tn  admitted  to  be  necessary,  in  order  to 
in  the  highest  punishment ;  so  as  from  the 
mentioned  in  ezculpation,  it  is 
there  was  no  intention  against  the  de- 
Aod  it  cannot  be  known  whether  the 

ei  dea^irn  was  to  kill  Bridgeton,  since 
not  killed,  or  if  the  wound  w<Mild  have 
liMBvtal,  bad  thesword  reached  him ;  and 
MH^BOCly  the  necessary  reqnisites  to  const i- 
ftiiaaBnler,  were  not  to  be  found  here." 

h  was  answered,  that  the  invasion  with  a 

—Id  weapon,  with  which  the  defunct  was 

yu,«as  a  sufficient  proof  in  law  that  the  iii- 

ndw  iolraded  to  kill,  since  death  followed ; 

■i  ibtt  there  is  no  wounding  by  measure, 

HtcRtuiy  not  to  kill.  The  act  implies  chlus 

isdndice,  which,  with  death  following,  makes 

■■ds;  inihout  any  farther  proof  of  an  act  of 

lirai^jlikill ;    and  tbere  would  have  been  as 

Uretideoce  that  the  pannel  intended  to  kill 

Bri^noo,  if    be  bad  actually    received  the 

■•viand  died,  because  it  was  possible  the 

tsvri  night  have  pierced  farther  than  he  in- 

fesdid ;  and  if  lie  did  not  design  to  kill  Bridge- 

l"a.  Mil  killed  the  defunct,  he  must  have  been 

6eper>6n  against  whom  the  mischief  was  di- 

icned.    As  indeed  it  may  be  argued  from  the 

fi^and  drunkenness  pled  in  excuse  and  de- 

nee,  it  is  possible  that  er  rabie  he  intended  to 

Ul  vhomerer  he  met  with ;    and  if  rage  from 

fiKino  3Ri|  drink  is  alloweil  to  palliate  iininier, 

I  iiioipouible  any  one  can  be  fiafe.     And  tiiet^e 

wif  drciimstances,  without  which  the  defence 

bs  Bot  a  colour,  roust,  at  the  same  time,  give 

that  the  |innners  intrniion  o\'  {uir- 

Bridgeton  with  a  sword,  was  to  kill  and 

him  ;    for  be  pleads  them  to  excuse  his 

of  the  defunct,  as  sufficient  provocations 

feisdte  him  to  it. 

Tbc  law  of  England  was  freqiirntly  inen- 

^fi  by  the  procuraturs  for  the  |tannel  in  the 

llHdiag,  as  what  won  hi  Justify  Mic  orgnnients 

^a^^htfor  tbem  ;  and  |>aiticularly  it  was  said, 

^TkA  lU  kiiliog  of  a  suddenly' by  tliat  law, 


was  only  manslaughter,  and  not  mnrder."  But 
the  contrary  will  appear,  by  looking  into 
Hawkins's  Pleas  of  tiie  Crown,  book  1,  cliap. 
31,  of  Murder,  where  he  clearly  distiaguishes 
between  deliberate  murder,  audi  murder  con- 
mitted  on  a  sodden :  And  in  this  last  case,  ma- 
lice prepensed  is,  by  the  law  of  England,  often 
implied,  as  lord  chief  justice  Keylinge*  lays  it 
down,  Begina  v.  Mawgridge,  and  justifies  it 
by  the  case  of  Hollo  way,  who  espying  a  hoy 
that  came  to  cut  wood,  took  him,  and  tied  hiio 
to  an  horse's  tail  with  a  cord,  and  then  gave 
the  horse  two  blows,  whereby  he  run  away« 
and  broke  the  boy's  shoulder,  whereof  he  dieo; 
which  must  have  been  sudden,  and  was  ad- 
judged murder.  And  p.  130,  he  supposes  A  to 
have  been  provoked  by  B,  and  to  have  drawn 
his  sword,  and  made  a  pass  at  him,  when  B 
had  no  weapon  drawn,  but  missed  him  ;  there- 
upon B  draws  his  sword,  and  passes  at  A,  and 
tliere  being  interchange  of  passes  between  them^ 
A  kills  B.  I  hold,  says  the  author,  this  to  lie 
murder  in  A,  for  A's  pass  at  B  was  maUdooa^ 
and  what  B  aflerwards  did  was  lawful.  Here 
is  both  suddenly  and  provocation,  and  yet,  in 
the  opinion  of  that  great  lawyer,  it  would  have 
been  held  murder.  And  in  the  present  qoestioOy 
neither  Bridgeton,  nor  the  deceased,  had  any 
weapon  drawn. 

And  to  shew,  that  according  to  the  law  of 
England,  the  aiming  at  one,  and  hitting  ano- 
ther, does  not  make  death  follo\«ing  man- 
slaughter ;  in  the  end  of  the  next  page  he  sets 
down  the  Case  of  Dr.  Williams,  a  Welsbmsui 
who  having  a  leek  in  his  hat,  upcm  8t.  David's- 
day,  a  certain  person  pointeil  to  a  Jack-of-Lent 
that  hung  up  hard  by,  and  said  to  him,  *'  LOok 
upon  your  countryman!"  At  which  Dr» 
Williams  being  enraged,  toftk  a  hammer  that 
lay  u|K>n  a  stall  hard  by,  and  flung  at  him, 
wliirh  liitanotlier,  and  killed  him  :  An<l  though 
being  indicied  upon  the  statute  of  stalibing,  it 
was  resokeil  he  was  not  \«iiliin  that  statute, 
because  of  the  kind  of  weapon ;  **  Yet,"  says 
the  author,  *'  if  the  indiiiiiient  had  been  for 
niunler,  1  do  think  that  the  Welshman  ought  to 
have  been  convicted  thereof. "f 

And  since  the  pannel's  procurators  insisted 
so  much  upon  the  law  of  England,  the  pursuers 
cannot  but  mention  the  authority  oi  one  of 
those  lawyers,  as  to  one  of  the  cases  they  them- 
selves stated  in  the  debate  ;  Hawkinv's  Picas  of 
the  Crown,  chap.  31,  in  fin.:  The  case  is. 
That  a  |)erson  shooting;  at  tame  fouls  with 
intent  to  steal  them,  arcideutally  killa  a  man  ; 
that  Jiithor  .".ays,  ^'  TliHt  it  is  agreed  it  would  be 
murder.  i\\v\  not  mnn«l:night**r." 

*  So  in  the  Furinn  Edition.  But  it  appears 
that  chi<'f  justice  HoU  is  intended  SceMaw- 
griilpe's  Case,  p.  57,  of  tins  Volume.  » 

f  Ixinl  Chancellor  Bacon  is  in  this  opinion 
of  Hawkins  expressly  :  See  Vol.  4,  (Edit. 
1740)  p.  41,  on  explaining  this  maxim  offing- 
lisli  \\\v\  **  In  criuiinalibus  sufticit  generalis 
maliiia,"  &c.  \%here  he  states  cases  very  similar 
to  the  case  here  argued.    Farmer  Editum^ 


91]  2  GEORGE  IL 

It  is  troe  iodeed,  that  it  would  appear  by  the 
law  of  Eogland,  as  laid  down  in  tnese  reports, 
thai  if  there  is  pro?ocatioD,  io  some  partica* 
lar  cases,  sufficient  to  alleviate  the  act  of  kill- 
ipg,  it  reduces  it  to  a  bare  homicide.  But 
then  DO  pro? ocation  from  words  is  ever  sus- 
tained, nor  CTen  assaults,  hst  upon  this  ground, 
that  he  who  was  affronted  or  asssaulted,  might 
reasonably  apprehend,  that  he  that  treated  him 
in  that  manner  might  have  some  farther  de- 
sign upon  him,  which  resolves  the  matter  into 
a  kind  of  self-defipuce ;  and  in  this  the  law  of 
England  differs  from  tlie  law  of  Scotland, 
which  requires,  in  order  to  lawful  defence,  and 
killing  under  the  notion  of  danger  from  the 
assailant,  **  ut  quis  sit  constitotus  in  periculo 
▼itse."  But  then  there  is  no  pretence  of  ap- 
prehending dangerous  consequences,  when  the 
party  killed,  or  intended  to  be  killed,  was  flving, 
and  had  no  weapon,  as  in  this  case,  and  the 
passion  in  such  circumstandes  resolves  itself 
simplv  into  revenge,  which  no  law  ever  sos- 
tained  to  alleviate  or  palliate  murder ;  for  there 
the  malice  prepensed  is  clear  and  evident. 

But  then,  if  it  be  conridered  in  the  present 
ease,  that  the  party  affronting  or  invading,  is 
not  only  set  forth  to  have  fled,  and  to  have  had 
BO  weapon  in  his  hand,  but  that  he  escaped ; 
what  colour  is  there,  upon  these  principles,  to 
alleviate  the  killing  of  a  person  interposing  to 
prevent  the  mischief,  when  there  was  no  re^ 
aistance  upon  the  part  of  any  person  wliatso- 
ever,  as  in  the  case  of  a  combat,  and  where 
it  was  voluntary  as  to  the  person  giving  the 
wound,  in  regard  he  could  have  stopped  when 
Bridgeton  fl^,  which  cannot  be  said  with  re- 
gard to.  the  Welshman  who  threw  the  hammer. 

To  (conclude  this  matter,  it  appears  pretty}evi- 
dent,  the  circumstances  offered  in  exculpation 
afford,  by  the  law  and  practice  of  Scotland,  no 
relevant  detence,  suppose  the  person  kilted  had 
been  the  provoker,  much  less  m  the  case  where 
the  person  killed  ^nerously  interposed  to  pre- 
vent the  mischief,  having  given  no  colour  or 
cause  of  pn>vocation,  having  no  weapon,  and 
where  the  person,  against  whom  the  invasion  is 
said  to  be  meant,  was  without  drawn  sword, 
and  flving :  the  murder  in  these  circumstances 
must  nave  proceeded  either  from  rage  and  re- 
Tengc,  which  no  law  can  ever  favour,  since 
laws  were  made,  and  judges  appointed,  that 
private  persons  should  not  attempt  judging  in 
their  own  case,  and  to  Inridle  the  unruly  pas- 
sions of  men,  or  from  set  purpose  and  design 
to  kill  tlie  defunct,  from  former  resentment 
And  what  adds  to  the  presumption  of  the  last, 
is  the  nature  of  the  wound,  quite  through  the 
body,  and  that  the  sword  went  tlirough  tlie 
back  lower  than  where  it  pierced  the  belly ; 
which  excludes  all  possibility  of  pleading,  that 
the  pannel's  stumbling  might  have  pushed  il 
forward,  because  by  the  nature  of  the  thing, 
bad  he  stumbled  after  the  sword  bad  pierced 
the  defunct's  body,  it  must  have  raised  the 
foint  of  the  sword,  so  that  it  eoald  not  bare 
pieroed  loaier  in  the  hick  than-in  the  belly. 

VpoatiM  fist  kMch  eC  the  libdi  thepor 


Trial  of  James  Carnegie^ 


c 


\ 


suers  think  it  unnecessary  to  open  the  pu 
cular  circumstances  from  whicli  the  panne 
causeless  ill-will  and  resentment  may  appi 
against  the  defunct ;  that  is  matter  of  evidea 
and  upon  which  no  interlocutor  in  the  rm 
vancy  can  pass,  and  must  lie  in  tlie  breasv 
the  assize;  and  against  this  relevancy  no 
ception,  or  colour  of  exception  can  bepretena 
to  lye.  And  as  to  the  separate  relevancy, 
art  and  part,  vi  bat  is  offered  to  be  proven,  ■ 
the  defunct  thrust  himself  in  a  manner  a. 
the  pannel's  sword:  as  it  is  of  too  ddia 
proof,  and  was  repelled  in  the  case  of  Hamta 
of  Green,  it  is  believed  the  lords  can  hava 
regard  to  it  And  as  for  the  drunkenness 
provocation,  especially  where  the  provoc^ 
IS  said  to  have  been  given  by  a  thinl  partir 
it  were  sustained,  it  must  turn  up  wliati.:: 
been  thought  tlie  foundations  of  the  laap 
Scotland,  and  stand  in  opposition  to  all 
practice  that  can  be  discovered  from  the  b^ 
of  adjournal.  And  the  allowing  such  defea 
as  might  possibly  have  some  colour  in  th» 
of  England,  to  be  proven,  would  be  of  daa 
reus  consequence  in  the  law  of  Scotland,  w  fa 
the  pursuers  are  tied  up  to  a  precise  relevanc 
so  that  the  procedure  in  that  part  of  I 
island,  in  trials  of  this  kind,  unless  the  wbi 
form  of  trial  were  adopted  in  our  law,  won 
open  a  door  for  leaving  murders  unpunishe 
The  law  of  Scotland  alone  can  be  the  rols  i 
this  case ;  though,  at  the  same  time,  it  is  h 
lieved,  that  the  ipecUsfacti,  as  set  forth  by  ik 
|»annel,  would  be  suliicient  warrant  for  a  va 
diet  of  murder,  even  according  the  laws  ai 
practice  of  England.    In  respect  whereof,  b 

CllA.  Ar£skins. 

Information  for  James  Carnegie,  of  Finiiati 
Pannel ;  against  Susanna,  Countess  i 
Stratliniore,  the  Hon.  Mr.  James  I^ 
Piirsuere,  and  his  Majesty's  Advocate,! 
his  llighness's  interest 

The  said  James  Came<iie,  of  Finliata 
stands  indirted  before  your  lordships  of  wiM 
and  premeditate  murder  andhonucide;  ini 
far  as,  having  a  causeless  ill-will  and  resH 
meut  against  the  deceased  Charles,  earl  i 
Strathmore,  he  couceivc^d  a  deadly  hatred  si 
malice  against  him ;  and  (on  the  day  libelle 
"  did,  with  adrawn  sword,  without  tlie  leasts 
lour  or  cause  of  provocation  then  given  by  Ui 
invade  the  said  deceased  Earl,  and  diil  oase 
and  feloniously  murder  and  kill  him,  by  i^vii 
him  a  wound  therewith  in  the  belly,  when 
he  soon  aUer  died.  At  least,  at  the  time  ai 
place  described,  the  said  Charks,  earl  of  Stva^ 
more,  was  with  a  dmwn  sword,  feloniously  ai 
barbarously  wounded,  and  died  of  the  sa 
wound  within  a  few  davs  thereafter ;  and  th 
the  pannel  was  art  and  part  in  this  murder 
And  the  Indictment  concludes,  **  By  all  wbii 
it  is  evident,  that  you  are  guilty,  art  and  pii 
of  tlie  orimes  of  wilAil  and  premeditate  mupi 
and  homicide,  or  ene  or  other  of  tliem»  aV  II 
timeandplait|.aMlui  tbttnuner  abof*  i 
l«th.« 


If/* 


fjfiU  Murder  of  the  Eari  ffSitaihmore.  A.  D.  IVxh. 

pMd  «M  ti— Mbt  to  ym  ImMuf^  alwi j«  ymmmiM,  nnd  iAi»i  «M  *.^f* 

■*f  Uibcf  Joljciinvatfto^lctti  tA  woht  mymi^ymft,  m^tim  i/#  a^  IvHif  tiM  «* 

be  sppcand  — rfer  ibat  um  m  •  faukty,  «r>l  b<M  •  ^^mj^u   ;iih^*mi  m«4 

of  apinl  »ivk  4mj  tul^wi  o^  Umm^  W  if***  p««.#  w*«fc  ••• 

!■■  aifJilmaaB  Bort  be  Um^mi^  wmmiot,  wa^M  t*^  mpMI^  h^^f4  •*•  »»m»»# 

•beU«Dd«f'Eoe.         TWk  ImS.  «■  Wi^«*tiM  MM  «••*  '•^'jr  |(^«* 

CMC       fv    1H»     flbUl^     »*^*    iHli^aai    %k     1^    (V^  !«« 

ial  «r  1  aM  ^  ma  mi  fii—  «iia     iir^«  i-ji  {:•««»  :A*'nii      «u^:ft  «^f  ^^^   ^« 

*l^-.    W  tfMUilMiqf  c-vaa   fMA»   l«^:«     •  *-^^/ 
1»  tut       in»   M»    »   HB—<««       Mil  1*^  W^JUtt  K-tf^oft  «/  4 


•ff 


t.t 


»5-.         «..S-. 


•  AM'rf 


95] 


2  GEORGE  11. 


used  ?ery  great  rudeness  to  the  lady 
in  irhose  houwtliey  were  ;  particularly,  when 
ahe  in  cif  ility  offered  him  a  glass  of  brandy, 
he,  seeing  the  nannel  already  overtaken  with 
drink,  desired  the  lady  to  *j^ve  it  to  him,  her 
lirother  ;  and  upon  her  saying  that  her  brother 
did  not  seem  to  want  it  at  that  time,  he  grip- 
ed lier  by  the  arm  so  rudely,  as  to  make  her 
complain,  and  swore,  by  God,  her  brother 
aitlier  should  drink  it,  or  she  should  drink  it 
herself;  and  persisted  in  this  way  of  doing, 
tall  the  lord  Strathmore  thought  it  proper  to 
break  off  the  visit,  and  so  went  out  of  the 
house. 

*'That  Finhaven  and  Bridgeton  followed 
the  Earl ;  and  when  they  came  to  the  street, 
some  words  passed,  and  Bridgeton  used  the 
ezpreision,  *  God  damn  him,*  meaning  the 
pannel,  and  with  that  gripped  him  by  the 
breast,  and  pushed  him  into  a  dirty  kennel  two 
feet  deep,  over  head  and  ears,  where,  in  the 
condition  he  was,  he  might  have  been  smother- 
ed if  a  servant  of  the  Earl's  had  not  helped  him 
out,  who  at  the  same  time  expressed  his  indig- 
nation at  the  action  he  had  seen,  by  these 
words  addressed  to  Bridgeton,  *  Sir,  though 
*  you  be  a  gentleman,  you  are  uncivil.' 

"  That  Bridgeton,  after  having  so  flung  the 
paonel  into  the  kennel,  leaving  him  there, 
walked  forward ;  at  the  same  time  turning 
about,  and  folding  his  arms  across  his  breast, 
acomfully  laughed  at  him  in  that  condition. 

*<  That  the  paonel  being  helped  out  of  the 
kennel  in  manner  foresaid,  immediately  drew 
his  sword,  and,  in  a  just  passion,  pursued 
Bridgeton  with  a  staggering  pace:  and  Bridge- 
ion  ran  towards  the  earl  of  Strathmore,  whose 
back  was  then  to  him,  and  endeavoured  to  pull 
out  his  sword ;  at  which  time  the  pannel 
coming  up  with  Bridgeton,  made  a  push  at 
him ;  in  which  instant  the  Earl  turning  hastily 
about,  pushed  off  Bridgeton,  and  threw  him- 
aelf  in  tne  way  of  the  sword,  by  which  he  re- 
ceived the  fatal  wound." 

These  are  the  unlucky  drcnmstances  of  the 
fact,  as  the  lalvyers  for  the  pannel  have  been 
instructed  to  plead  :  and  from  it,  as  so  stated, 
the  defence  iunsted  upon  for  the  pannel  was, 
that  the  act  of  killing  is  not  murder,  nor  capi- 
tal, where  there  is  no  malice  nor  forethought 
•gainst  the  person  killed,  either  prored  to  have 
been  conceived  and  retained  at  any  time  pre- 
ceding the  act  of  killing,  or  presumed  from  the 
circumstances  to  have  preceded  the  act  imme- 
diately before  the  committing  of  it :  but  that 
in  this  case  there  is  no  antecedent  malice  spe- 
cified or  lybelled ;  and  therefore  it  must  be 
taken  for  granted,  that  there  was  none.  And 
as  to  presumed  malice  immediately  preceding 
the  act,  that  the  circumstances  entirely  exclude 
that  presumption ;  first,  because,  as  the  fact  is 
laid,  any  blow  or  push  that  was  intended,  was 
made  at,  and  designed  for  Bridgeton,  and  not 
against  the  earl  of  Strathmore  ;  and  since  the 
imtium/acti  is  to  be  considered,  as  well  as  the 
•rent,  a  push  begun  and  intended  against 
BridfUBPi  «ould  otrar  be  tha  fouBdatioa  of  a 


Trial  qfj^mes  Camegle^ 

^  presumption  of  malice  against  the  lord  St 
more,  the  person  killed  without  wbicb 
killing  could  not  be  capital,  but  in  tfaia 
was  merely  casual  and  accidental,  it  hi 
bapnened  by  the  Earl's  imluddly  tumilig 
in  the  time  of  the  pannel's  very  act  of  poa 
against  Bridgeton,  wherd>y  the  Earl  rec 
the  fatal  wound.  3do,  That  the  pannel 
never  be  more  criminal  in  having  kiUed  tfa 
of  Strathmore  by  a  thrust  directed  at  Brid| 
than  he  would  have  been  if  be  had  killed  Bi 
ton  himself;  but  that  so  it  was,  that  if  Im 
killed  Bridgeton,  after  the  provocation  m 
manner  above  set  forth,  that  it  wouul 
been  construed  ouly  as  casual  or  culpaU 
midde,  without  forethought,  because  don 

*  incontinent!,  et  ex  aubito  impetu,  et  i 

*  justse  iracnndise ;'  yea,  in  some  mea« 
self-deleucc;,  since  the  pannel  having 
thrown  into  the  kennel,  even  to  the  dasai 
being  suffocated,  he  had  reason  after  tl 
expect  the  wont  from  Bridgeton,  since  ofl 
tieman  will  throw  another  into  a  puddle,  vt 
not  supposed  to  be  ready  to  go  further,  i 
cannot  but  expect  the  strongest  retortion  c 
injury ;  and  that  the  pannel  bad  the  more 
son  to  think  so,  that  Bridgeton  immediately 
took  himself  to  the  earl  of  Strath  mere's  ai 
and  endeavoured  to  pull  it  out,  having  M 
his  own,  by  reason  that  the  known  ferodi 
his  character  and  behaviour  is  such,  that 
country-gentlemen  of  bis  acquaintance  del 
to  keep  company  with  him,  if  he  wear 
arms :  in  such  case  the  pannel  was  to  a 
the  worst,  and  so  was  in  some  measure  ii 
own  defence,  although  he  may  have  exoa 
the  *  moderaroen  inculpatoe  tutels ;'  wl 
excess,  in  such  circumstances,  would  no 
punishable  by  death,  but  only  by  an  arbiO 
puniahmeiil. 

And  in  support  of  this  dcfeure  the  con 
for  the  pannel  shall  now,  in  this  informal 
endeavour,  though  somewhat  out  of  the  c 
of  their  pleading,  to  follow  the  inforoii 
given  in  for  the  pursuers.  And  first,  to  i 
your  lordshifis,  that  killing  in  such  circ 
stances  was  not  capital  by  the  divine  Ian 
law  of  Moses.  2do,  That  it  was  not  capita 
the  common  law,  which  we  in  great  mei 
follow  in  matters  of  that  kind.  Stio,  Th 
was  not  capital  by  our  own  ancient  law. 
That  our  ancient  law  in  that  particular  is 
altered  by  the  statute  of  Charles  2.  5to, ' 
the  practice  of  the  Court  is  not  inconsitf 
but  agreeable  to  what  is  here  pled.  And 
That  the  laws  of  our  neiglibouritig  nations 
for  tlie  most  part  consonant  to  tliose  princij 
as  well  as  the  judgment  of  ibreip^u  courts. 

And  to  begin  with  the  divine  law,  it  ma 
divide<l  into  two:  First,  the  law  of  nal 
which  is  the  first  of  all  laws,  and  hath  no  € 
author  than  God  Almighty  himself.  Sdo, 
will  revealed  by  writing,  particujariy  in 
Uws  delivered  by  Aloses. 

And  as  to  the  law  of  nature,  one  of  the 
principles  seems  to  be,  that  every  action  i 
be  constroed  and  regulated  from  tbo  iotii 


fofr  the  Murder  of  the  Earl  of  Strathmore.  A.  D.  1728. 


[98 


.  Everjr  action  whatever,  except  io 
is  coDJo'iDed  with  the  will  and  inten- 

•  a^ent,  cliflTeri  in  nothio^f  from  the 
irrational  cremtnre ;  yea,  if  we  may 
s  to  call  the  o|ienition  nr  impulie  of 
te  creature  an  action,  the  actions  of 
led  from  his  intention  and  design  as 
sntnre  differ  in  nothing  from  the 
ftrntes,  or  the  impalse  of  things  iu- 
aod  consequently  that  action,  be 
I, cm  neither  be  crime  nor  virtue; 

*  impulse  or  motion,  not  properly 
laws  or  rules.  But  then,  indeed, 
im  to  be  conjoined  with  tlie  inten- 
Mk  is  the  same  thini^,  considered  as 
rf"  a  rational  a^ent,  there  it  comes  to 
to  bus,  to  be  considered  as  criminal 
i :  or  if  it  appear  to  be  accidental,  so 
depended  upon  no  will  nor  delibera- 
isoo,  then  it  returns  to  be  of  the  na- 
ict  of  an  irratioOal  crcatur6,or  inani- 
iDce,  and  is  subjected  to  no  penalty, 
pable  of  receiving^  a  reward.  The 
)aence  of  which  is,  that  it  is  the 
De  that  determines  the  nature  of  the 
'the  animuM  or  intention  was  crimi- 
ij  the  law  of  nature,  the  action  itself 
a  crime.  On  the  other  hand,  if  ii 
i  f  irtnous,  the  act  is  laudable  by  the 
tore,  supposing  even  a  bad  consc- 
old  follow.     But,  in  the  third  place, 

0  truly  arise  from  no  intention  or 
(oreming  that  action,  it  is  neither 
K  punishable,  it  returns  to  be  of  the 
Ij  mentioned,  the  same  with  the  like 
srational  creature,  or  the  impulse  of 
ite  substance,  moved  by  a  cause  in- 
itself.  And  the  consequence  of  all 
a  by  the  primary  law  of  nature,  the 
Mat  make  the  crime ;  and  therefore 
fear  no  intention  to  commit  that  par- 
X  which  happens  to  be  complained 
t  a  crime,  uot withstanding  of  a  bad 
ee ;  it  is  considered  as  a  tatalit}-. 
'application  is  plain  to  the  present 

tiiat  if  the  unfortunate  act  of  killing 
td  lord  did  not  fluw  from  any  intention 
Kted ;  then  that  net  is  not  bv  the  law 
a  cr.minal  act,  however  the  antece- 
directed  airaioat  another  may  he  cri- 
t  is  another  question,  hoiv  far  a  ra- 
nt, vcrsans  t><  illicito,  is  bound  for 
ces  that  did  not  lall  umler  liis  iiiten- 
'.  shall  afcer^vards  endeavour  to  shew, 

1  neither  a  question  iu  the  law  of  na- 
D  the  divine  law  ;  but  is  a  question 
m  the  municipal  laws  of  particular 
,  or  at  farthest  from  the  law  of  na> 
letimes  called  the  secondary  law  of 

point,  that  the  intention  directed  to- 
act  committed,  must  govern  the  ac- 
to  render  it  criminal  or  not,  accord - 
first  principles  of  the  law  of  nature, 
be  pretty  plain,  if  we  retire  our 
torn  other  aher  laws  ;  so  indeed  it  is 
and  illustrated  by  the  written  law  of 
iVIL  / 


God,  as  delirered  by  Moses,  with  rmrd  parti- 
cularly to  the  question  of  manslaughter.  It  is 
almost  unnecessary  to  o)»serve,  that  whether 
the  remedy  against  the  penal  consequences  of 
actious,  committed  without  intention,  was  in 
form  of  an  absolvitor  upon  the  trial,  or  by  bar- 
ing access  to  a  city  of  refuge ;  it  is  the  same 
thing :  the  question  is,  what  was  to  he  the  pu- 
nishment that  was  to  take  eflfectP  If  the  pu- 
nishment was  to  be  stopped  in  that  form,  by  fly- 
ing into  a  city  of  refuge,  the  principle  of  law  is 
the  same,as  if  the  effect  had  been  to  be  stopped  in 
any  other  way.  And  just  so,  as  we  will  after- 
wards have  occasion  to  notice,  it  is  the  same 
thing  as  to  our  law,  whether  the  manslnyer  was 
to  be  safe,  by  flying  into  gyrth  or  sanctuary, 
according  to  the  old  law,  or  now  to  be  safe  by  a 
judicial  absolvitor  or  restriction  of  the  punish- 
ment. And  just  so  with  regard  to  the  law  of 
neighbouring  nations ;  it  is  all  one,  whether  a 
man  is  to  be  freed  by  beneflt  of  clergy,  or  such 
other  form,  if  he  is  to  be  free.  The  foundation 
question  is  only,  what  was  the  panishmenr  that 
necessarily,  cum  effectu^  falls  to  be  inflicted 
upon  a  homicide  orsnch  and  such  a  kind ;  and 
as  in  this  case,  upon  a  homicide  dommitted 
without  tbrethoufifht  Or  malicious  intention  di- 
rected agamst  tiie  person  that  hath  suffered  ? 
And  therefore  if,  by  the  Mosaic  law,  one  in  the 
pannel's  circumstances  was  to  have  the  benefit 
of  a  city  of  refuge,  the  argument  concludes, 
that  by  that  law  he  would  not  have  been  sub- 
jected to  the  pain  of  death.  Indeed  we  believa 
we  will  be  able  to  go  a  little  farther  to  shew 
your  lordships,  that,  according  to  the  opinion 
of  the  most  learned  interpreters  and  doctors  of 
the  Jewish  law,  the  l)enentof  the  city  of  refuge 
was  scarce  necessary  in  such  a  case  as  that 
which  is  now  bel'ore  you. 

In  the  19th  chap,  of  Deut.  the  cities  of  re- 
fu{ve  are  appoint^^d  to  be  separated  io  the  midst 
of  the  land,  that  every  slayer  may  fly  thither : 
"  And  this  is  the  case,"(«ays  thetext)  "  of  the 
f«1ayer,  which  siiall  fly  thither,  that  he  may 
live:  whoso  killeth  his  neighbour  i^norantly, 
whom  he  hated  not  iu  time  past;"  or,  as  it  is 
said  to  be  more  literally  in  the  original,  '*  from 
yesterday  the  third  day."  By  this  text  your 
lordships  see  those  two  are  conjoined  as  expli* 
catory  of  one  another,  *'  ignorantly  whom  he 
haten  not  in  time  past;"  and  so  the  word  *'  ig- 
norantly"  is  put  in  opposition  to  "  hatied  iu 
time  past,"  and  by  that  means  the  sense  is 

tilain,that  by  ** ignonintly" is not|nieant,  without 
Knowing  that  he  kills  his  neighbour,  but  with- 
out a  fure- knowledge,  a  foresight,  a  former  ra- 
tiocination and  design  :  in  which  sense,  know- 
ledge is  most  frefjuently  taken,  because  it  is 
imiKtssible  to  maintain,  that  if  a  mau  i^norant- 
ly  kill  his  ueighbour,  even  whom  he  hated  be- 
fore, taking  the  word  "  is»iorantl\\"  in  that 
sense,  of  his  not  knowing  that  he  kills  him,  or 
killing  him   by   mere  accidviu,    without    his 
knowledge,  can  he  liable  as  a  luurdcier;  be- 
cause it  is  impossible  to  conjoin  e\c»  preuous 
enmity  wiUi  accidental  iguoraiu  killing,  «<>  ■" 
to  make  out  a  crinie  ol  luuv^^v  •,  \W\  >^*:^<i  *^' 
11 


99] 


2  GEORGE  II. 


cccdiotf  inconsistent  with  every  |>rinci|jle  of 
reason,  tur  more  uith  a  law  fluiviiig^  from  infi- 
nite perfection.  But  then  the  matter  is  fully 
explained  hy  ?er.  11,  of  that  same  chapter, 
which  determines  when  a  man  is  not  to  have 
the  benefit  of  the  city  of  refii^ ;  "  But  if  any 
man  bate  his  nei{;hhour,and  he  in  wait  for  him, 
and  rise  up  against  him,  and  smite  him  mortal- 
ly that  he  die,  and  flieth  into  one  of  these  cities: 
then  the  elders  of  his  city  shall  send  and  fetch 
him  thence,  and  deliver  him  into  the  hand  of 
the  avenger  of  blood,  that  be  may  die."  Here 
are  both  sides  of  the  question  put,  the  one  fully 
to  explain  the  other ;  the  last  to  explain  what 
is  meant  by  <*  i(;norantly,  whom  he  hated  not 
in  time  past.*'  The  last  text  does  bv  no  means 
•ay,  that  if  a  man  smites  his  neighbour  whom 
he  knowcth,  ahhough  without  hatred,  and 
without  lying  in  wait,  and  without  rising  up 
against  him,  that  he  shall  surely  die  ;  but  ou 
the  contrary,  puts  the  issue  of  his  dying  upon 
his  liating  uf  hhn  whom  he  killed,  and  u|x>n 
his  rising  up  against  him  whom  he  did  kill ; 
and  u(K>n  his  lying  in  wait,  that  is,  in  other 
words,  n|>bn  bis  designing  to  take  his  opnortu  - 
nity  from  a  premeditated  malice:  for  indeed 
the  meaning  cannot  be  that  of  a  formal  lying  in 
wait,  or  lurking  in  a  pussage  where  the  person 
was  to  pass ;  but  he  who  debi^ns  the  thing, 
and  takes  bis  opportunity,  lies  in  wait  in  the 
plain  sense  of  the  text  Besides,  the  word  *  *  ig  • 
Donntly"  ?ery  plainly  imports,  and  carries 
under  it  that  case  of  a  man's  killing,  by  mis- 
adventure,  one  whom  he  did  not  intend  to  kill, 
that  is  plainly  ignorance  ai  to  him  who  was 
killed  ;  and  yet  it  will  be  true,  that  if  he  de- 
signedly kill  one  in  place  of  another,  mistaking 
the  [>ers<)n,  but  designing  to  kill  that  person,  as 
aup|K>sed  to  be  the  other,  he  does  not  ignorant - 
ly  kill  the  man  whom  be  does  slay,  he  kills 
him  knowingly,  although  he  mistake  the 
man. 

Nor  is  it  of  any  importance,  that  the  exam- 
ples immediately  subjoined  in  the  5\\i  verse, 
are  instances  of  slaughter  entirely  accidental ; 
and  where  the  slayer  did  really  not  know  that 
he  killed,  that  is  an  example,  but  not  an  ex- 
ample exhausting  the  rule,  which  the  lltli 
verse  fully  clears,  as  not  extending  the  capital 
punishment  to  all  who  caiQe  not  under  the  de- 
acription  in  the  5th  verse,  but  to  those  alone 
who  ^*  bated  their  neighbour,  lay  in  wait  for 
him,  and  rose  up  against  hiiii." 

And  though  this  is  plain  vnough  from  that 
part  of  the  law,  yrt  the  matter  is  indeed  more 
fully  exjdained  in  xxxvtli  chap,  of  Numb, 
where  there  is  another  ordinance  as  to  cities 
of  refuge,  and  thev  are  appointed  to  be  six ; 
and  the  general  mlc  is  set  down.  That  every 
one  that  kills  any  person  unawares,  may  fly  to 
thote  cities.  Nothing  can  be  plainer  than 
the  meaning  of  killing  unawares,  tnat  is,  with- 
out deliberation,  unexpectedly,  without  fore- 
tboaght,  ex  improvito,  es  inconsuitu:  these 
are  bW  aynonymous,  and  accordingly  the 
Septnigict  translntioD  to  renders  tbo  words 
n9fm,UiA  iS|  **  hivoiumarily  ;*'  and  lo  like- 


Trial  of  James  Carnegie^ 

wise  the  Jewish  doctors  have  expl 
will  afterwards  be  noticed. 

Ader  this  the  text  goes  on  with 

meiit   or  amplification   of  that  y 

"  And  if  he  smite  him   witli  an 

of  iron  (so    that   he  die)  he  is  i 

&c.    And  if  he  smite  him  with 

stone  (wherewith   he  may   die)  ; 

he  is  a   murderer,  5cc.    Or  if  he 

with  an   hand- weapon    of   wood 

he  may  die)  and  he  die,  he  is  a 

These  are  the  amplifications ;    bi 

lows  the  limitation  in  the  20th  ve 

if  he  thrust  him  of  hatred,  or  I: 

by  lying  of  wait,  that  he  die ;  < 

smite  him  with  his  hand,  that  he  < 

smote  him  shall  surely  be  put  to  dc 

is  a  murderer,"  &c.     Here  is  th< 

he  that  killeth  or   thrusteth    wi( 

weapon,  is  a  inunlerer,  under  th 

introduced  by  the  particle  '  but,'  as 

tory  exception  to  the  generality 

but  if  he  thrust  him  w  ilh  hatred ; 

other  wonls,  that  he  is  a  murderer 

him  in  hatred :   and  therefore  cc 

refer  from  this  text  to  the  other 

nomy,  already  cited,  for  explicat 

where  it  is  stalutcd.  That  if  a  ni 

neighliour,  and  rise  up  against  hiii 

him  ;  whereby  they  plainly  uudersi 

ing  him  of  hatred,  as  the  same  w 

against  him,  and  smiting  him  witi 

as  to  comprehend    every  maune 

witli  any  weapon ;  and  conse<|ui.  n 

is  not  a  distinct  manner  of  killiii'^ 

is  expressed  in  the  IGth  verse,  b 

adjected  to  the  manner  of  killing,  s 

it  capititl,  viz.  That  it  must  he  doi 

And  this  is  yet  more  elearly  ex  pi: 

32nd  and  fblloivin<>[  verses,  y^  here 

tion  is  Ntated  lietuixt  thrusting  s 

of  enmity,  with  a  direct  rcferi'iieii 

17th,  and  18th  vei-scs,  *'  But  if  h< 

suddc'niy  without  enmity,  or   ha% 

him  any  thing,  without  laying 

with  any  stone  whercwiih  a  man  uk 

him  not,  and  cast  it  upon  hint  tha 

was  not  his  enemy,  neither  soii<;l' 

then  the  coiigrc;4ation  shall  jmi;. 

shall  deliver  the  slayer  out  (d  the 

avenger    of   blood. *'      There    ril 

methods  of  killing  before-inentit 

ferred  to  :  thrusting,  properly  apf) 

killing   with  a  sword,  but   \viih< 

casting  any  thing  upon  him,  uitl! 

wait,  or  forethought,  or  with  any  « 

with  a  man  may  die,  the  very  ihii 

inlhe  17th  verse,  and  from  which 

to   be   a    murderer ;   yet,  it  he 

enemy,  neither  sought  his  harm, 

munlerer,  he  is  not  to  die,  but  lu 

from  the  avenger  of  blood.    2So  tin 

last  vcri«8  are  a  plain  limitatioi 

went  before ;  the  instrument,  w  ha 

was  to  raise  a  presumption,  it  a 

but  yet  if  itapiiear  the  pervon  %va 

or  hurled  at,  or  smitten  in  euui 


I]      fir  the  Mwrier  fjfihe  Earl  of  Siraihmore.         A.  D.  1 72& 


[102 


'ffv  to  be  ddifcred  ffrom  the  aTengrr  of 

ctn  it  stnmble  jour  lordihipt,  tlitt 
Hid  ferse  are  thew  words,  '*  teeing 
iwtC  **  if  this  were  one  of  the  renuisites 
ftr  the  ilayer^t  safety*  that  he  did 
taan  whom  he  thm8tat,or  killed 
iMtttthiragh  not  done  in  enmity:  for, 
til  impOBnble  tn  imagine,  that  the 
'nag  him  not,"  however  they  miq^ht 
iccMe  of  throwing  a  stone,  can  hare 
10  the  words,  **  thrusting  with- 
How  can  a  man  thrust  at  him 
Mfth  not?  Or,  How  can  he  smite 
I  he  seeth  not,  in  any  proper  sense  of 
f  Aad  therefore  it  is  plain,  that  as  to 
'^*  '  the  only  limitation  b,  that  it  be 
Mtat  enmity.  But,  Sdo,  your  lord- 
tiB  obaerre,  that  tlie  word  *•  him**  in 
"  seeing  him  not,"  is  not  at  all 
;  itisau  ailjeclion  of  the  trans- 
,  as  such,  is  distinguished  in  different 
in  any  correct  editions  of  onr  bibles, 
I  is  an  erroneous  adjection  :  the 
inrid  be  only  •*  seeing  not ;"  and  per- 
il translations  ou^rht  not  at  all  to  be  by 
-:-■-•,  c«  aecinjj,"  but,  according  to  the 
Latin  language,  by  an  adjectire, 
M,  impmidui  imprudent^  or  the  like  \ 
iBBiiduig  to  oor  langua^,  by  a  substan  • 
■lidvcre,  such  as,  *  without  foresight :' 
^isBeptnagint  does  translate  it  in  these 
■mlm,  which,  in  our  language,  is  di- 
'viibool  foresight,*  that  is,  without 
iisD  or  anterior  design  to  give  the 
Aad  so  the  sense  comes  out,  that 
tthroft  or  blow  of  that  kind  is  given, 
'  lity,  foresight  and  premeditation, 
words,  $ine  dolo^  that  there  death 
^  y> fellow,  but  the  slayer  to  have  the 
.■••''ibe  city  of  refuge.  And  that  the 
■nent  lawyers,  and  Jeuish  doctors 
.  have  understood  the  scofke  of  the 
it  liv  to  be  such,  is  the  next  point  we 
'ttdettonr  to  shew  your  lordships. 
'Mio  ibe  first  place,  we  heg  leave  to  refer 
"Wincifnt  treatise,  called  Mosaicarum  et 
■^htrum  Leirum  Collatio,  last  published 
W^  letnied  Schulten,  with  his  own  notes 
m\i\  in  tbe  first  Tit.  of  which,  De  homi- 
■■Jewu,  V.  voluntate,  §  5,  are  those  words, 
f||M  dr  casualibns  homicid'iis  Moises  Isga-  | 
KfciuSiautem  non  per  inimicttias  immi- 
^ItBper earn  aliquod  vas  non  insidians,  vel 
JJ*i  qoo  moriatur,  non  per  dolum**  (your 
*^pi  will  please  mark  those  last  words) 
"ftftcMcrit  Miper  eum,  et  mortuus  fuerit,  si 
^  inimicus  ejtis,  &c.  liberabitis  percus- 
^•**  Here  is  directly  set  down,  by  way 
'pnpbrsse,  the  sense  of  the  93rd  verse  of 
r'^ib  chap,  of  Numb,  before  cited ;  and 
Riy  of  these  words,  *  seein||^  not,'  the 
n^nie  of  thb  ancient  collator  is  expressed 
V*ewocds,  <  noo  ner  dolom ;'  which  shews 
JfiMefHanding  ne  bad  of  tbe  words,  di- 
2%coBgnioo8  to  what  we  have  above  set 
m%  ■ppnhciidi  to  be  the  Sep- 

/ 


tuagint  translation ;  and  this  paraphrase  the 
annotator  approves  of  as  the  just  meaning  of 
the  text. 

But  we  beg  leave  to  give  your  lordships  ano- 
ther great  authority,  who  founds  his  opinion 
up«in  the  notions  of  the  Jewish  doctors,  or  rather 
sets  forth  what  they  all  a;;rpe<l  on  to  be  the 
import  of  the  Mosaic  law  on  this  head,  and 
that  is  the  ^ve^i  and  learned  Selilen,  in  his 
treatise,  De  jure  naturali  et  gentium,  jnxta 
disciplinam  Hebneorum,  lib.  4,  cap.  9.  The 
title  of  which  is,  '*  De  homicidio  involuntHrio, 
sen  quod  casu  factum  aut  errore."  Theie  the 
learned  author  takes  notice  of  all  the  texts  upon 
this  subject,  and  of  the  Jewish  doctors  \iho 
hail  wrote  upon  it,  whose  names  we  need  not 
trouble  your  lordships  to  refieat,  but  retVr  to 
tlie  quotations  Selclen  makes.  That  learned 
author  takes  notice  of  three  sorts  of  homicide, 
which  he  and  the  Jewish  doctors  reckoned  to 
be  involuntary,  acording  to  ihe  Mosaic  law, 
and  not  to  be  punished  with  death  :  the  first 
is,  What  is  merely  accidental.  Tlie  second 
is.  Where  the  killing  was  not  merely  acci* 
dental,  but  as  he  expresses  it,  "  prope  acce- 
dens  ad  violentiam."  The  third  we  beg  leave 
to  set  down  in  his  own  words,  as  commg  up 
directly  to  our  case:  '*  Tertia  aqtem  homicidii 
involuntarii  species  est,  ubi  qui  alium  occidil 
ex  errore  quioem  aut  ignorantift,  quae  tanieo 
prope  accedit  ad  id  quod  spontaneum  est  sea 
voluntrium ;  veluti  uoi  quis  alterum  occidero 
volens,  alterum  jactu  aliterve  perimit,  aut  ubi 
jactu  sive  saxi  sive  teli  in  hominiim  cietum, 
ciijus  nee  ignarus  qui  jecerit  quis  occisos: 
adeoque  intervenerii  culpa  latissima.  £x  tribua 
hisce  homicidii  involuntarii  s|)eciebus,  nulla  eat 
que  morte  ex  sentent  ft  tbreusi  ordinarily,  sive 
in  Ebneo  aliove  circumciso,  sive  in  proselyto 
domicilii,  aut  gentili  alio  puniretur.  Nam  in 
nniversum  pronunciant,  homiuidium  nullumi 
seu  qui  non  sponte  seel  us  patraret,  sic  foro 
puniendum."  Yea,  he  goes  farther,  that,  in 
this  last  case,  according  to  the  Jewish  doctors 
opinion,  there  was  no  need  of  going  to  the 
cit^  of  refuge,  for  that  the  avenger  of  blood 
had  not  a  power  in  that  case  to  kill. 

We  apprehend,  nothing  can  be  more  direct 
or  strong  to  the  present  case,  than  that  autho« 
rity  which  is  laid  down,  as  the  universal  opi- 
nion of  the  Jewish  doctors,  which  we  hope  does 
deserve  some  regard  in  the  interpretation  of  tbe 
Mosaic  law. 

And  this  naturally  leads  us  farther  to  observe 
to  your  lordships  what  we  insinuated  before^ 
that  the  question  started  by  Roman  and  mo- 
dem lawyers,  how  tar  a  person  that  intends  to 
kill  one  man,  is  liable  to  the  pain  of  death  if 
he  kill  another,  hath  no  foundation  in  the 
Mosaic  law,  either  from  the  texts,  or  the  opi- 
nion of  those  Jewish  doctors.  As  to  the  last, 
your  lordships  see,  that  Seldeu  from  them, 
directly  states  the  case,  **  ubi  quis  alterum 
occidere  volens,  altorum  jactu  aliterve  peri- 
mit;" and  he  and  thej^  determinoil  that  to 
be  an  involuntary  homicide,  not  punishable 
with  death;  and  \s^  »ppreti%Y^^  Vbal  \^  tkk\a 

\ 


103] 


8  GEORGE  U. 


Triat  of  James  Cant^ie, 


[ 


tbey  are  firanded  in  the  words  of  all  the 
texts,  **  If  any  man  hate  his  neighbonr,  and 
}ye  in  wait  for  him,  and  rise  np  afifainst 
him,  and  smite  him  mortally,  that  he  die :" 
Not  one  word  here  of  rising  up  against  one 
and  killing  another ;  not  a  word  of  hating  one, 
and  in  consequence  of  tliat  hatred  killinff 
another :  that  was  a  case  which  did  not  fall 
under  that  law.  The  hatred  and  the  rising 
up,  W88,  by  that  Isw,  to  be  against  the  man 
who  was  killed ;  if  another  by  fatality  happen 
to  be  killed,  that  was  a  different  case,  it  was 
an  inToIuntary  homicide ;  the  crime  there  was 
not  the  killing,  but  stood  upon  the  rising  up 
against  him  who  was  not  killed ;  and  so  the 
punishment  was  for  invasion,  but  not  for  kill* 
log.  The  texts  in  the  book  of  Numbers  are 
all  to  the  same  purpose :  «  If  he  smite  him 
who  is  killed  of  hatred,  or  hurl  at  him  by 
laying  of  wait  that  he  die,  or  in  enmity  smite 
with  his  hand  that  he  die,"  &c.  where  all  the 
rules  are  still  directed  towards  the  person 
alone  that  is  killed ;  and  that  of  killing  another, 
when  the  stroke  was  not  designed  at  him,  is 
ijjuite  left  out  of  the  case.  And  the  applica- 
tion of  this  reasoning  to  the  present  unhappy 
accident,  is  too  evident  to  need  enlargement.  If 
it  appear  that  the  push  was  aimed  at  Bridgeton, 
that  the  enmity  was  againat  him,  and  not  against 
the  deceased  lord ;  then,  whatever  bo  the  con- 
stitution of  the  Roman,  or  more  modern  laws, 
the  present  case  is  quite  out  of  the  description 
of  tne  Mosaic  law  concerning  this  article  of 
manslaughter. 

What  hath  been  already  said  at  so  great 
length,  does  fully  obviate  what  is  offered  in 
the  pursuers'  information  in  way  of  answer.  It 
is  true,  that  the  general  rule  in  the  divine 
law  is,  <*  That  whoso  sheddeth  man's  blood, 
by  man  shall  his  blood  be  shed  ;**  and  so,  by 
the  sixth  Commandment,  the  prohibition  is 
general,  <«  Thou  shalt  not  kill  :'*  yet  even  the 
Commandment  itself  ad  mite  of  exceptions ; 
such  as,  killing  in  self-defence,  and  killing  in 
execution  of  justice,  and  killing  in  prosecution 
of  just  war,  and  the  like.  The  other  rule  like- 
wise admits  of  exceptions,  not  so  as  entirely  to 
t'ustity  the  killing,  and  to  make  the  act  lawful, 
>ut  yet  so  as  to  excuse  from  the  |»ain  of  death. 
The  texts  already  noticed  are  express,  that  a 
man's  blood  may  be  sheil,  and  yet  the  blcxNl 
of  the  shedder  not  be  required  en  that  account. 
The  question  is,  Whether  this  misfortunate 
panners  case  comes  not  under  the  exceptions  ? 
And  that  we  have  already  discussed. 

The  positiou,  that  by  the  law  of  Afnses, 
M  Death  of  asuddenty  was  plainly  ca)Mtal,  and 
that  the  slayer  had  the  bcoeiit  of  ibecity  of  re- 
fuge, only  where  the  slaughter  was  by  mere 
roi»fortune,"  is  assumed  wituoutsuHicieutfouu- 
dation.  It  is  plain,  that  he  who  thruMts  without 
enuiitv,  does  not  kill  the  man  by  mere  casual- 
ty :  the  act  I'rom  which  death  tbllowa,  is  a  vo- 
luotanr  act,  although  without  euiuity  :  andal^ 
ihougfa  the  killing  is  involuntary,  and  so  can 
never  be  said  to  So  merely  casual  in  the  sense 
4ho pmuan  would laktt the wordf;  neUherva 


the  words  in  Exodus,  *'  If  a  man  lie  n 
wait,  but  God  deliver  him  into  his  hand,"  i 
least  contrary  to  what  bath  been  advsn 
for  it  is  roost  properly  said,  that  where  tb 
is  without  the  de^i^Q  of  the  killer,  withou 
mity,  and  without  hatred  ;  that  there,  in  i 
as  concerns  the  killing,  God  hath  delivcre 
man  into  the  hand  of  the  slayer.  The 
meaning  is,  that  where  a  man  is  killcc 
with  design,  but  that  the  thing  happens  b 
over- ruling  hand  of  Providence,  pcroM 
things  of  that  kind,  in  his  sovereign  wii 
and  from  hia  supreme  power ;  that  ther 
person  is  delivered  to  death  by  the  over-c 
hand  of  God.  And  where  could  ever  th 
more  properly  applied,  than  on  the  presen 
lancholy  occasion,  when  the  providential 
ing  about  of  the  unfortunate,  dcceaseil  loi« 
casioned  his  receivuig  the  fatal  wound  ? 

It  is  likewise  a  position  assumed  w 
reasim,  *'  That  wherever  a  man  was  kill 
a  mortal  weapon,  that  was  murder  by  the 
saic  law."  vfe  hope  we  have  already  da 
strated  the  contrary.  If  enmity  and  foretia 
was  required,  (and  we  need  only  repea. 
one  teso,  which  expresses  the  kilHng  ■ 
with  a  stone,  wherewith  be  may  die)  the' 
text  declares  the  stone  to  be  a  mortal  we^ 
yet  for  all  that,  in  case  of  the  circums 
mentioned  in  the  other  verse,  the  slayer  vb 
to  die,  but  to  be  delivered  from  the  aven 
blood  :  and  this  single  consideration  m  i 
sufficient  to  refute  such  a  position.  I» 
possible  for  a  man  to  use  a  mortal  w  • 
where  there  is  no  enmity,  nor  design  to  k 
person  who  is  slain?  If  it  be  possible,  as 
tainly  is,  tlien  can  we  imagine  thatal^ 
perfect  as  the  divine  law  itself,  could  dp 
man  guilty  of  murder,  because  of  the  ' 
such  a  weapon,  where  he  really  intend 
more  barm,  than  a  man  that  used  a  wea] 
another  kind?  Besides,  that  in  truth 
weapon  is  a  mortal  weapon  with  which  s 
may  be  killed :  and  therelbre«  to  iniagio 
the  divine  law  laid  such  a  difference  b 
an  instrument  of  iron,  and  one  of  another 
is  certainly  to  go  too  far.  The  law  of  Gc 
put  the  matter  upon  a  much  juster  tbi»ti 
wit,  the  intention  of  the  person,  which 
can  distinguish  his  actions. 

The  pui-suers  also  say,  "That  thoo( 
argument  is  grod,  that  wherever  the  beut 
the  city  of  refuge  %vas  not  competent,  the 
crime  was  capital ;  yet  it  does  not  fulloH 
where  the  power  of  the  laws  were  susp 
by  the  jut  a»yli^  that  the  punishment  is 
be  capital  iu  a  country  where  the  jiuofy/i 
DO  place." 

but.  with  submission,  this  is  no  solid  v 
arguing :  the  question  hitherto  treated  is, 
was  tlie  Uw  of  Moses,  with  regard  to  pi 
inents  in  the  case  of  manslaughter  ?  If  tl 
Disbmeni  in  any  case  was  not  ca)Ntal«  be 
of  the  privilege  of  the  asylum,  tlie  cone 
isjiist,  that  the  all- wise  G<nI  did  not  inteiM 
puniskmenta  should  be  mflictcd  for  such 
taaoe^  aiid  tht  fiwm  of  granting  the  pnH 


MS]       Jor  the  Murikr  of  ike  Hart  of  Strathmore.  A.  D.  1726. 


im 


irike  BUKhant,  does  not  alter  Ihe  subsUnce 

fht  MSt  poiii  lodertakeo  to  be  illastrated, 

m,  TWt  MBclauglUer,  under  sucb  circum- 

gtaMHW  occur  in  tbe  present  case,  was  not, 

Iviha  SMUBOo  law,  pnaisbahle  by  death  :  and 

M  isfBMBi  ami  indeed  be  divided  into  se- 

•iieh  as,  Imou  Tbat  culpable 

sw  not  so  ponishable,  and  tliat  bo- 

■aittsil  opoo  sucb  high  provocation, 

WPfcRfifeQ  by  Bridgeton,  coiiM  amount 

^flUli  hooMtdt  only.    Sdo.  That,  by  that 

ki^aidnucd  lord  not  having  beeu  intended 

UltkiiilMttbe  invasion,  whatever  it  was, 

lajiiBit  another;  Uie  killing  the  earl 

*,ortl  worst  culpable,  not  puniahable 


r: 


iiitftB  the  first  of  these  points,  we  shall 

"  Jior  lordships  with  infinity  of  laws 

■of  lawyers  that  might  be  adduced 

Ae  poiot,  but  ooly  take  notice  of  some  of 

iMl  raairkible,  and  which  seem  most  ap- 

*'  II  tbe  present  case.      And  in  the  first 

faoodationof  the  Roman  law  on  this 

to  have  heen  laid  down  as  early 

Aidijief  N'uina ;   tor  the  Roman  writers 

■iiiiieeof  a  Itwof  his  in  these  wordu ;  *«  Jn 

felvbul  ciiitum  est,  ut  si  quis  imprudens 
■  lecidittet,  pro  capite  occisi  et  natus 
RiieBMiooeofferret  arietem.''     This  law 
bisMieeof  by  Pithaeus,  in  his  annota- 
W^tliefore-citeil,  ancient  treatise,  cfim- 
pHf  ibe  Monir  and  Roman  Uw,  with  refl^ard 
MiMofinaiiUaugbter,  w  agreeing  pre- 
M^aitfcthelaw  of  Aloses;  and  tho  plain 
■■■■Ci^it  is,  that  where  a  man  kills  ano- 
■>,ilihosgfa  cul|iahl^,  yet  if  if  ho  sine  doh 
f^yn^tiam,  hi  is  not  to  Riiflcr  death,  but 
*■■*•*«>  thracnl  til  the  n»»arest  rehitions 
"•fViOii  killi-d:    and  the  same  treati»e 
'■■'•Beof  a  rescri  pt  of  Adrian's  to  the  same 
^^•.directed  to  TauriniKs  I'^iintius,  approv- 
^'^ 'Moment  given  in  ihc  cawe  of  one  Ma- 
•^nMUf,  whereby  the  prucunsul  had  nii- 
^P'Bdi^lMjnishment  of  manslantrhter  upon 
•tpMJwJ,  thai  suppose  it  was  done  per  las- 
«*«i  wd  culpably,  yet  il  ivas  sine  doio.  The 
■*die*  Ihe  rescript  are,  **  Pcenatn  Marii  Kva- 
nbrccie,  l^atc  Taurine  moileratus  es  ad  mo- 
^Mi  rni[n; ;  relert  cnim,  et  in  majoribus  de- 
w  cuosuiio  alio  quod  admiltatur  an  casu  ;  et 
■xisooioihuM  criminibus  distinctio  hcec  pcc- 
■uiiMjiistitiam  provo<:aredel>etaut  tempera- 
■wtom  adniittere."     And  ^»chuIten,  in  his  an- 
•Wmss,  explains  what  is  meant  by  casu  in 
■»«  aords,  ♦*  Per  casum  hie  intellis^itnr  fieri 
^  iioo  fit  dolo,  quomodo  et  quod  impetu  fit, 
•^  Jicittir  fieri,"  I.  1,  sect,  a,  ad  leg.  Cornel. 


Lbi  pro  causa,  editiones  veteres 
^fbttsm  recte  haberi  casu  certi»imum  est.'* 
•fcefc,  by  the  bye,  shows  how  erroneous  the 
^|ars'  isterpretatioo  of  the  words  casus  and 
Ijssi  •  M,  » hen  they  w«Mild  reslrict  them  to 
^  ii  done  by  mere  acciilent. 
'  1W  ReacTid  rules  or  the  civil  law  arc  plain 
2|^ paint,  tlMt  it  is  the  **  animus  qui  male- 
wildiHiBguU ;"  %kMi  tlMre  can  be  uu  wuiiler, 


^*  aine  aniiso  occidendi."     But  tibeao  gononl 
topics  need  not  be  insisted  on,  whore  the  texto 
tbiemaelvea  are  so  express,  auoh  as  not  ooly 
these  already  mentioned,  but  even  tJJMt  1.1,  sect. 
S,  ad  leg.  Corn,  de  Siccar.  "  Divus  AdriMUif 
rescripsit,  eum  qui  honiinem  oocidit,  ai  noo  oc* 
cidendi  animo  hoc  admiait,  absolvi  poAU».''  And 
a  little  after,  **  £t  e|t  re  coostitueadum  boc^ 
nam  si  gladium  strixerit,  et  in  eo  percttsserit^ 
indubitate  occidendi  animo  id  eum  aduiiaisso.** 
But  then  he  adds  the  exoeptiou,  "  &:d  si  olavi 
percuasit.  aut  cuccum^  in  rixi :  quamvis  terra 
percusserit,  tamen  non  occidendi  animo,  lenieii« 
dam  poanam  ejiia  qui  in  rixa  caau  magis  quana 
voluntate  homicidium  admisit."    It  is  truo  that 
the  pursuers,  and  indeed  several  of  the  doctors, 
endeavour  to  turn  this  text  the  other  way,  hy  a 
plainly   erroneous  interpretation,  and  wrong 
pointing  of  the  text.     They  pretend,  **  Thai 
where  a  wound  is  given  by  a  sword,  there  th« 
awmus  is  undoubtedly  presumed ;"   and  ao  far 
right  as  to  the  rule.    But  then  the  law  aeta 
down  the  exceptions ;  first,  if  the  stroke  bo 
**  clavi  aut  cuccuuift/*  suppose  these  be  mortal 
weapons  wherewith  a  man  may  die,  yet  be* 
cause  they  are  not  instruments  exiiressiy  mada 
for  death,  the  presumption  is,  that   **aberat 
animus  occidendi."  uoleMs  i-ireumstancesmaka 
it  appear  otherwise      Then  the  seconil  excep* 
tion  is  **in  rixa,  qnamvis  term  percusserit,'^ 
although  a  mHu  strike  witli  a  swoni,  yet  if  it  ba 
in  rixa.  suddenly, or  ujion  a  provooaiiou  giveD, 
*'  tanien  non  occidt-ndi  animo,  leniendam  pca- 
nam  "   because  ^'  in  rixa,  casu  magis  quam 
volnntate  homicidium  admisit."    Thoiie  doo« 
tors,  inrleed,  who  go  wrong  in  the  interpreta- 
tion of  tliis  text,  pretend,  that  the  meaning  of 
quumris  fcrro  is  not,  although  he  strikb  with  a 
awiini.  lint  would  make  the   meaning  to  be, 
*'  Although  he  strurk  witli  an  instrument  of 
iron,"  and  so  make  the  word  J'errum^  and  also 
those  words  im  rijrci,  refer  to  other  words  "•  clave 
aut  curcuma  ;'*  so  as  that  the  sense  should  be, 
if  a  man  strike,  "  clave  aut  cuccunia  in  rixa," 
althoutrh  these  be  instruments  of  iron,  he  is  not 
presumed  to  ha\e  had  the  animus  occidendi. 
But,   with    submission,  as  t)oih   the   learned 
Noodt  and  Sciuiltun  observe  upon  that  law,  the 
interpretation  is  strained,  and  imleed  illiterate : 
for  the  word  /rrruw  is  never  used  in  law  in  that 
sense,  but  always  does  sii^nify  »  sword,  and  so 
the  expres^un  is  the  same,  hut  ornately  repeat* 
ed  in  other  words,  as  if  the  emperor  liad  said, 
**  in  rixa  quainvis  gladio  percuatserit :"    and  so 
the  sense  is,  that  the  animus  is  in  (general  pre- 
sumed from  the  using  a  sword,  that  it  is  not 
presumed  where  the  instrument  is  not  an  in- 
strument made  for  death  ;    hut  if  the  killing 
happen  in  rixa,  the  animus  is  not  presumed,  al- 
though the  stroke  be  given  with  a  sword. 

And  this  is  likewise  the  opinion  of  the  learn- 
ed tirotius,  in  hiii  annotations  upon  the  text,  in 
Numbers  aiiove  cited,  verse  16,  which,  in  the 
l^tin  translation,  is  rendered  **  Hi  quis  ferro 
pcrcussriit ;"  on  which  Grotiiis  hath  Uiisnote, 
'^  Mos  Khraiorum  luultis  verbis  rem  circumlo- 
qui.    iStiiikUb  e^ ;   mortis  esse  poiuam  quali- 


1 


107] 


fi  GEOHGB  IL 


cooqae  ti\o  <|uia  homiDem  ocdderit.  Ex  telo 
pnnuinitur  malam  cofwilium,  nisi  oontrariiifn 
appareat.*'  Tbero  your  lordtbips  see  that  au- 
thor's epinion  is  as-we  plead,  thiat  the  using  a 
mortml  weapon  presumes  the  design,  hut  not 
'*  preesumptione  juris  et  de  jure ;"  for  he  adds, 
**  mm  contrariuin  appareat." 

The  rescript  of  the  emperor  Antonine  b  like- 
wise as  express  on  this  head  as  can  be,  1.  1, 
Cod.  de  Siccar.  "  Frater  vester  rectius  fecerit, 
si  se  prcesidi  prorincisB  obtolerit.  Qui  si  probt- 
terit,  non  occidendi  animo  hominem  a  se  per- 
cussum  esse,  remissIL  homicidii  pcaiill,  secun- 
dum disciplinam  militarem  senientiam  profe* 
rit;  crimen  enim  oontrahitur,  si  et  voluntas 
oocendi  intercedat,  csterum  ea  qnie  ex  impro- 
vise casu  potius  qnam  fraude  accidunt,  fato 
plerumque  non  noxos  imputantur."  Here  the 
emperor  plainly  sets  down  these  two  things, 
first,  Ths!t  "  pcsna  homicidii  est  remittenda,  si 
animum  occidendi  non  habuerit/'  2do,  That 
where  the  thing  is  done  ex  imprcrvt90j  there  is 
no  animui ;  that  it  is  to  be  looked  upon  as  clone 
colli,  by  fatidity ,  rather  than  crime :  but  never* 
theless  that  in  such  a  case  there  may  be  an  ar- 
bitrary nunishment. 

The  doctors  of  the  Roman  law  seem  to  be 
unanimous  on  this  general  point.  Carpzovius, 
one  of  the  severest  criminalists,  is  most  express 
upon  it ;  *'  Ceasat  porro  pcena  ordinaria  bomi- 
culii,  si  culpa  vol  casu  fuisset  commissum  ho- 
roiddium  ;'*  and  goes  on,  '^  quod  adeo  verum 
Ml,  ut  m  homicidio  lata  culpa,  dolo  non  sequi- 
fwretur."  Clams  is  likewise  as  express  upon 
this  general  head ;  and  such  shoals  of  others 
are  by  them  quoted  and  referred  to,  that  it  were 
vain  to  repeat  their  names,  or  trouble  your  lord- 
ships with  quoting  their  words.  We  don't 
know  that  any  lawyer  of  reputation  differs  upon 
the  general  point 

But  then  indeed  the  question  comes,  What 
is  culpable  homicide?  And  whether  the  pre- 
sent case  fiills  under  that  description  ?  Which 
is  next  to  be  illustrated.  And  here  we  humbly 
insist,  that  where  the  homicide  is  committed 
upon  a  sudden  quarrel,  and  provocation  given, 
cspeciallv  by  real  injury,  and  that  quarrel  be- 
gun not  bv  the  killer;  that  this  is  no  more  than 
culpable  homicide:  and  for  this,  in  the  first 
place,  we  oppone  the  law  already  cited,  **  in 
rtxa  quamvis  ferro  perctisserit."  And  to  the 
same  porpose  is  the  first  law,  §  5.  ff.  ad  senat. 
consult.  Turpilianum,  the  I.  S.  Cod.  de  abolit. 
and  the  §  9,  1.  iG,  de  pcenis ;  the  words  of 
which  we  shall  not  trouble  your  lordships  with 
rtpeating,  because  they  are  the  common  texts 
founded  upon  by  doctors  on  this  head.  We 
have  likewise  lor  us  the  authority  of  all  the 
ancient,  moral  philosophers ;  such  as  Aristotle, 
Plato,  Plutarch,  and  many  others,  likewise  com- 
Monly  taken  notice  of  by  the  lawyers  on  this 
aabject.  It  is  true,  some  of  the  severest  cri- 
ninalists,  such  as  Matthssiis  and  Carpsovios, 
Am't  admit  the  role  in  general,  but  still  they 
admit  aa  mach  as  is  necawary  in  the  prewnt 
qucttinn:  tbey  doo't  allow,  that  where  the 
killcc  ii  muiv  rixm^  tliat  he  it  at  all  to  be  a- 


Trial  qf  James  Cart^lef 

cased,  although  the  killing  happ 
iracundia ;  but  then  most  of  tlicm 
if  the  killer  be  not  the  auctor  rixa 
person  provoked,  to  whom  a  just 
has  been  giv.en,  especially  by  a 
and  so  particularly  Carpzovius,  on 
verest,  after  he  has  argued  at  Ion 
the  general  point,  concludes  in  lii^ 
§§  14  and  16.  '*  Nihil  quoque  ad 
gula  adducta,  quod  scilicet  delictu 
missum,  mitins  puniri  soleat ;  quia 
de  ira  ex  justa  causa  proveniente  ac 
duplex  etenim  ira  est,  alia  ex  justa 
venit,  que  si  non  in  totum,  tamen  e 
cusat,  ut  delinquens  mitius  puniatu 
non  provenit  ex  justa  causs,  qus  i 
cnsat."  Then  he  adds,  **  Hsec  dis' 
mnniter  recepta  est  ah  interpretibus 
severals.  And  then  concludes,  **  H 
causa  calorem  iracundioe  pneceda 
quia  ah  alio  fuerit  provocatus,  au 
offensus,  time  is  qui  ir&  et  intenso 
motus,  provocantem  seu  offendenti 
absque  dtibio  a  poena  ordinaria  libera 
vero  si  quis,  absque  justa  et  pml 
iratos,  aliqnem  occidat,  dc)  ^no  ci 
loquimur,  qui  p<ene  homicidii  ordii 
quam  est  eximendus."  And  then  t 
that  the  practice  in  the  court  of  J 
agreeable  to  this. 

There  is  an  adjudged  case  vei 
published  in  a  book,  called  Alpho 
Neapolitanl  Consultationes  Decis 
learnedly  resolved.  It  is  the  Decis 
shall  state  the  case  in  the  words  of 
'*  Quidam  nobilis  Ragusinus  fuisset 
extra  (sed  prope)  ecclesiam  sanctee 
tri  Gravosa,  a  quodam  alio  nobili  F 
eodem  pacto  evaginavit  puguiuncm 
tum  verberantem,  ac  in  fu<>;am  jam 
et  ipsum  insequens,  unico  vulnere 
in  dicta  ecclesia  (qnam  ille  intj^ret 
dictam  ecclesiam  egrediens  sese  in  I 
et  cum  dictus  verberator,  ex  dicto  u 
vulnere  intra  dictam  ecclesiam  mor 
The  case  came  to  be  tried,  at  leasi 
tions  upon  it  to  be  resolved,  by  the  s 
sus;  where  several  questions  occ 
those  which  are  most  applicable  to 
case  are  two :  First,  '^  An  hujusin* 
diiim  in  ecclesia  perpetratum,  turra 
vduntarium  necne,  eo  quinl  dictii 
secutus  fuisset  ilium  cessantem  a  vt- 
ferendis,  ac  aic  unico  vulnere  inflict 
set?"  The  second  question  is,  * 
nobilis  pnedicto  modo  ac  de  causa 
tam  immunitatem  ccdesiasticaiu,  V( 
seculari,  et  ecclesiastico  pccna  nidi 
tendus,  vel  solum  mitiori  pcenal*" 
tion  upon  the  first  question  is.  That 
first  view,  the  homicide  might  seen 
<*  £o  quod  dictus  nobilis,  neinine  i 
pellente,  fugientem  hominem  vuln^ 
bilominus  nullo  pacto  fore  judicand 
dinm  voluntarium,  aut  pro  tali  diet 
nm.^  The  reasons  fi>r  this  n 
down  with  great  laamiDg  and  ju* 


W]      >r  the  Murder  of  the  Earl  ^  atratJmore.  A.  D.  17S8. 


[IW 


MM  hif,  that  h  iiimpoisiUe  to  repent  them : 

fnliTkey  ire  taken  from  the  defiuiiion  of  vo- 

kmrf  bomiodr.    Stlo,  From  tlie  texts  of  the 

iNOilnr,  ond  the  opinioD  of  doctors.    Stio, 

Fiaalbt  particular,  that  the  noblemau  had 

'     '      "^    ]y  itruck  before;  ou  which  the 

ruble,  "  £z  hoc  ergo  articulo, 

clidtur  hoDiicidium    hujusmodi 

et  mm  voluotarium,  nam  Quli& 

■■iiiMqMnte,evaginato  pugoioDe,  ipse  do- 

percusaus  iosecutus  fuit  dictum 

jam  fugieotemy  et  hoc  pro  honoris 

DMinDe,  ut  sic  se  tueretur  ab  in- 

flnonli  recepta  ex  verberibus :"   after 

■W  Mm  a  kwg  reasoning,  all  in  the  pan- 

lAAfMn.  And  this  case  we  take  tbemore 

t0M  d,  kcaose  the  parsaers  pretended  to 

■baAliictiMi  betwixt  the  case  of  a  wound 

^mA§  rcrjT  moment  a  real  injury  is  done, 

■Uifilwgifen  after  the  iqjurer  has  desisted 

talaUBi,  and  retinsd  to  some  distance ;  but 

jjiiap  difference,  except  the  interval  be  so 

1^  kcao  be  supposed  the  thought  of  the 

TJared  iru  cool.    The  other  question  is 

loolfed  in  favour  of  the  arciuied,  that 

a  ene,  not  the  ordinary  punishment, 

ladaiaiticslor  civil,  ought  to  take  place, 

■ftttif  llie  pana  mitior^  and  conlirmed  by 

■7  itaf  reaaons,  which  we  cannot  recite, 

"  '  to. 

jtt  oilier  authors  that  might  be  cited 
^fP"^  ^ifl  opinion,  is  the  learned  Voet, 
biaTcr^asciioo  cited  by  the  pursuers,  ad. 
^tikf,  eon,  de  Sic.  n.  9,  where,  after  he 
iWjMiwiiat  is  cited  for  them,  that  onekilliug 
ttikr  whs  has  provoked  him  only  by  a  verbal 
vii|hiiajiry,  "  vix  est  ut  ab  ordinari^  pcend 
*■*•*"»*;"  he  adds,  that  if  the  provo<.'a- 
ii}'  ao  atrocious  real  injury,  tliat  would 
to  mitigate  the  ordinary  punish* 
lei  U>  confirm  that,  cites  Matlm:us, 
&c.  And  the  reason  given  by  these 
fur  making  tliis  allowance,  in  case  of 

Bfm»ocalioo,  is  expressed  in  these  words  by 
H^nd,  ad.  1. 17,  d.  t.  *'  Quod  ei  sit  igiios- 
■rfsmff^iiiprovocatus  seulcisci  vuluit,  tjuiquc 
■*■  Mortm  prosequitur." 
M  iodeed  we  a|>preljend  this  opinion  is 
■ssAnl  in  the  first  principle  of  nature ;  for 
Vttas}  JiunaQ  constancy  can  suflersuch  high 
al injur  jr,  without  the  passions  being  inflamed : 
d  afdKia<;h  killing  is  no  doubt  an  excess  in  the 
isnitiA  of  •  rpal  iujury ,  yet  still  it  is  but  an  ex- 
■«  SAil  the  iujury  shews  the  thing  done 
Afiut  de«ii(a  ;  ano  iherufore,  becnusc  of  in- 
■raU«,  human  weakness,  the  punishment 
it  to  be  mitigated.  And  the  application  to 
IprtMrDt  case,  as  we  apprehend,  is  obvious ; 
ii|t«i«  had  given  the  highest  provocation, 
My  by  a  track  of  verbal  injuries  and  en- 
vavs  lu  pick  a  quarrel,  but  had  committed 
taosi  provokint;  and  real  injury,  to  throw  a 
rinaa  over  head  and  ears  in  a  dirty  puddle, 
ftf  aiddle  of  a  town,  and  «ight  of  so  many 
kakcra ;  do  injury  oould  be  more  pmvoking. 
I  lafeul  there  was  Diore  in  it  than  an  in- 
fmkf :  one  thmt  waa  abU  to  throw  thepaa- 


nel  into  the  puddle  in  that  manner,  was  like- 
wise able  to  have  suffocated  him  there ;  tha 
pannel  had  no  reason  to  expect  otlierwise,  and 
therefore  do  wonder  if  he  betook  himsell  to  hia 
sword.'  And  the  other  circumstance  noticed, 
that  Bridgeton,  immediately  upon  the  doing  the. 
thing,  endeavoured  to  draw  and  make  himself 
master  of  my  lord  Stratlimore's  sword,  ga\e  the 
iiannel  ground  to  expect  the  worst ;  and  so  it  may 
be  doubte<l,  if  he  was  obliged  to  wait  till  Bridge* 
ton  should  have'an  opportunity  to  give  him  the 
blow,  even  with  a  mortal  weapon.  And  when 
this  is  considered,  the  fact  goes  fartlier  than  a 
retortion  of  the  highest  injury:  the  pannel 
was  in  some  measure  put  upon  his  delence ; 
and  granting  that  his  pushing  at  Bridgeton 
was  an  excess,  yet  still  that  excess  falls  only  to 
be  punished  pand  extraordinaria. 

All  lawyers  distinguish  excesses  of  that  sort 
into  three  kinds,  tliat  of  time,  place,  and 
weapon  that  is  used ;  and  excess  in  point  of 
time  is  punished  even  with  death,  where  tha 
interval  is  great;  because  that  interval  pre- 
sumes fraud  and  deliberation :  but  here  waa 
no  excess  of  time  ;  the  thing  was  doneer  ia- 
continentiy  when  the  injury  was  fresh  and  re» 
cent.  There  is  likewise  excess  m  point  of 
place,  when  the  injurer  is  allowed  to  retire  to  a 
considerable  distance  from  the  place  where  the 
injury  is  given;  aud  this  in  some  measure 
coincident  with  the  other,  because  it  implies  an 
interval  of  time :  yet  if  it  be  not  great,  tha 
lawyers  hold  it  to  ble  only  punishable  arbitra- 
rily. And  then  the  third  is  the  excess  in  tha 
use  of  the  wea|Min,  where  there  is  no  interval 
of  time  or  place  ;  and  that  is  always  agreed  to 
be  punishable  only  arbitrarily,  where  the  pro- 
vocation is  high.  * 

From  what  is  said  it  seems  plain,  that  if 
Bridgeton  had  received  tlie  thrust,  the  homi- 
cide would  have  been  culpable  only  ;  and  so 
it  remains  to  be  considered,  ii'  the  case  conies 
out  worse  for  the  pannel,  because  it  was  uiy 
lord  Sirathniore  that  received  the  wound,  and 
not  Bridgeton.  And  we  apprehend  it  does  not, 
but  ou  the  contrary,  that  this  gives  a  great 
strength  to  the  detence:  And  that  because, 
Inio,  The  push  being  designed  at  Bridgeton, 
shows  that  there  was  no  malice  at  my  lord 
Strath  more,  neither  prcnicditated,nor  presumed 
from  the  giving  of  the  wound:  for  admitting 
it  to  be  true,  that  in  an  ordinary  case,  the 
giving  a  wound  with  a  mortal  weapon  presumes 
the  dole  or  inalcvolous  intention  ;  yet  that  can 
never  be  where  the  push  is  pointed  at  another 
than  him  w  ho  by  fatality  receives  it.  And  so 
the  case  comes  out  thus,  that  the  [lanncl  in 
making  one  push,  could  not  design  it  at  two  per- 
sons ;  and  so  if  he  designed  it  at  Bridgeton,  it 
is  impossible  to  say  he  had  a  design  against 
my  lord  Strathmoie.  It  is  plain  in  the  nature 
of  the  thinfl^,  that  the  design,  though  presumed 
from  the  giving  the  wound,  yet  in  point  of  time 
it  precedes  the  actual  recei%  ing  ox  the  wound, 
although  that  preceding  or  precedence  be  but 
momentary  ;  and  therefore  if,  in  the  very  act 
of  pushing,  the  design  appears  to  have  beea 


ILl]  2  GEORGE  11. 

agarnBt  Brid|(etoii,  it  excludes  all  pretence  oF  > 
any  animus  a^inst  another  who  received  the 
i^ouud  hy  fatality,  in  the  very  moment  that 
the  design  was  pointed  afi^inst  the  other. 

And  here  your  lordships  will  likewise  ob- 
lerve,  that  there  can  be  no  animus  Decidendi 
presamed  at  all  atprinst  anv  man,  not  eren 
against  Bridgeton  himself;  because  the  draw- 
innf  a  sword,  and  pirshingf  at  a  man  with  it,  does 
nut  of  itself  presume  a  design  to  kill  the  man 
pushed  at,  eaccept  the  woand,  and  death  ac- 
tnally  follow:  for  it  is  from  theerent  of  the 
wonod,  anil  death  following  alone,  that  the  in- 
tention is  presumed.  Therefore  since  death 
did  not  happen  to  Bridgeton,  the  law  cannot 
presume  an  intention  to  kill  him ;  since  the 
foundation  of  the  presumiitio^  is  removed,  or 
did  not  happen.  If  the  blow  had  missed  him, 
or  had  not  killed,  but  wounded  him;  the  in- 
tention would  not  be  presumed ;  and  therefbre 
it  cannot  here  lie  presumed,  as  the  case  hap- 
pened ;  for  there  is  no  such  presumntion  in 
law,  as  that  killing  one  presumes  a  design  to 
kill  another;  except  where  it  appears  that  the 
slayer  killed  one  man  by  mistake,  taking  him 
to  be  another :  as  for  instance,  killing  Cains  in 
the  dark,  when  the  killer  really  beliefe<l  him 
to  be  Tilius;  there  indeed  the  killing  of  Caius 
iH«sumes  the  intention  of  killingTitlus,  although 
he  was  not  actually  slain  :  and  thercfoi'e  in  that 
case  the  killer  is  indeed  guilty  of  murder.  But 
it  is  quite  another  case,  where  one  man  is 
killed,  not  by  mistake  for  another,  but  by  fata- 
lity, when  the  push  was  intended  at  another, 
whom  the  killer  knew,  which  is  the  case  in 
band.  And  therefore  we  do  humbly  insist, 
that  it  cannot  be  said  there  was  an  intention  to 
kill  Bridgeton,  since  his  death  did  not  follow. 
Neither  can  it  be  said  there  was  an  intention  to 
kill  the  earl  of  Strathmore  ;  liecausc,  though 
his  death  did  roost  unluckily  happen,  yet  the 
tni/itcm,  upon  which  the  intention  roust  be 
founded,  did  not  happen,  the  push  being  made 
at  Bridgeton  ;  for  those  two  must  always 
concur,  the  push  made  at  iUe  man  who  dies, 
and  the  actual  death :  and  wbiere  it  happens 
otherwise,  the  death  is  a  mere  fatality  ;  not 
Intirely  innocent,  because  the  killer  was  so  far 
fiittlty  in  invading  the  other ;  but  then  it  is  no 
more  than  an  invasion ;  it  is  not  murder  from 
malice  presamed.  No  presumption  of  law  can 
get  the  better  of  contrary  evidence  :  the  pre- 
sumption of  law  may  be,  that  where  a  man  is 
killed,  he  was  intended  to  be  killed :  but  if  from 
the  circumstances  the  direct  contrary  ap|K>ar, 
that  there  was  no  intetitinn  against  hi:n  ;  this 
is  evidence  which  excludes  the  presumption  ; 
and  so  there  can  be  no  murder  in  the  case. 

It  is  indeed  a  case  stated  by  the  lawyers, 
what  should  l»e  the  consequence,  if  a  person  in- 
tending to  kill  one  man,  kill  another  ?  And  we 
acknowledge  they  are  greatly  divided  among 
themselfes  upon  theqneition ;  a  great  many  of 
the  sMest  of  thesn  ure  in  all  cases  clear,  that 
where  one  man  is  killed,  and  another  was  de- 
signed, it  cannot  be  murier,  because  of  the 
want  of  tn  intention  against  him.     Bartolus, 


Tfial  of  James  Carnegie^ 


I 


Farinacins,  Gomcsius,  Menocliius,  and  r 
bers  of  others  quoted  by  them,  are  pla 
that  opinion,  and  give  an  account  of  se 
judgments  of  the  courts  of  Mantua  and  Na 
and  others  to  that  purpose;  and  Farin: 
says,  that  it  is  tlie  common  opinion,  "  £t  a1 
sentpntiu  in  judicando  nun  esse  recedend 
And  however  other  lawyers  may  seem  to  c 
yet,  in  the  first  place,  the  divine  law,  for 
thing  that  can  be  found  in  it,  is  on  this 
because  it  pliinly  speaks  only  of  beating 
and  rising  up  against  him  who  hap|>ens 
ally  to  be  killed,  and  mentions  no  suchcai 
deserving  death,  as  this  is  of  rising  tip  a( 
one  man,  and  by  fatality  killing  another. 
That  this  was  the  opinion  of  the  Jewish  do 
is  plain  from  the  quotation  already  br< 
from  8elden,  where  this  very  thing  of  k 
one  man  in  place  of  another  is  made  part 
third  case  stated  of  involuntary  homicide 
determined  not  to  be  capital.  But  3tio,  ^. 
lawyers,  who  at  first  view  seem  to  diflF 
reany  not  differ,  when  the  cases  are  d 
guished :  for  what  they  plainly  mean,  is 
where  a  man  by  mistake  kills  Titi us,  beli 
him  to  lie  Mevius.  This  we  admit  is  ca 
for  reasons  before  given  ;  hut  not  the  oti 
killing  one  by  fatality,  and  not  for  anothe 
directing  the  blow  at  the  other. 

But  then  your  lordships  will  observes 
all  lawyers  agree  in  this,  that  wherever  a 
is  to  suffer  tor  killing  one,  when  ho  intend 
kill  another  ;  that  ran  only  be  where  the 
tliou^'litand  duluse  intention  to  kill  the  otI 
certain,  but'not  where  the  invafiinn  is  ex  imp 
And  therefore,  supposing  one  invade  anu 
with  an  intention  to  hurt,  or  prtruUre,  ai 
lawyers  call  it,  hut  witlumt  a  c«>rtain  evid 
that  his  thorough  intention  was  to  kill ;  t 
supposing  the  blow  intended  for  one  do 
another,  the  killer  cannot  suffer  death : 
which  by-the*bve  shows  your  lonishifis, 
there  is  no  snch  presumption  in  law,  as, 
because  the  push  killed  the  earl  of  Strathn 
therefore  the  pannel  intended  to  kill  Bridge 
for  if  that  were  law,  then  the  question  i 
never  occur,  but  would  be  inept,  wlietl 
man  intending  t(»  kill  one,  and  killing  an< 
with  that  blow,  is  guilty  of  murder,  or  is 
sumed  to  have  intended  to  kill  that  oth 
whom  the  stroke  was  intended?  We 
trouble  your  lordships  only  with  two  autho 
on  this  point,  which  are  very  direct  to  ihei 
the  fi riit  is  that  of  Htrlichius,  which  w< 
rather  notice,  because  he  seiMns  to  be  ag 
IIS  on  the  general  point ;  after  discussing  w 
he  hath  these  words,  speaking  of  his  own 
nioii,  "  Fallit,  si  quis  ali(|U('iii  iion  oirciden 
percutere  tanlum,  volens,  aliutn  prater  ii 
tioneni  i>ercutiat  iit  moriatur."  From  this 
lonlslii]is  see,  that  it  is  no  consequence, 
because  the  thrust  killed  my  lord  Strathi 
therefore  it  should  be  ptesunied  the  pann 
tended  to  kill  Bridgetun :  if  thai  were 
that  lawyer's  poiiitiun,  from  whom  nolKxh 
fers,  must  be  direct  nonsense.  And  thei 
fince  there  is  no  other  eridence  of  a  fartbi 


theMttrdero/theEarto/i 

*  BrMgtIM  tirati  pcrcnlcrt,  er- 

Btttlmlmhoriiir  lunl^trarb- 

ll  hk  ib*th  cannot  |>rmiiiire  it ; 

■  "(T  ifae  iwsition  Ui«  lawyer 

i[ti  tny  I     ' 

ir  Itiirt  lie  iulviiitnl  to  ito 
■'inn  at  rtqiluiD, 
.-wLill. 

■'■iiiatiis,  oajl. 
"■ly  (luCEtinnt  be 
tt'  lb*  kilJcr  VM  oeeupatuc  in 
■l«ny  H^^irres- 
the  CMC  her«, 
Mliabl«>,  altbongh  he  r.lianee 
If :  bnt  tliFD  he  goes  riirtlter, 
nplinailreiaextrinlariius,  reus 
""  «IB,  orcapaiiis,  tali  tHiiien 
il,  DtMCuuin  iaterferissel, 
rtam  tiitiatA,  ijnii|urtiKO 
ipmoioslBtbalcin  ncpperii 

'  '   ftl :  com  CDitii  Coii 

errurtiMifn  enm  4 

debvl:  atqueCainpo- 

fbnit,  *el  iracuoiliam 

erit,  id  quoil  induwcii- 

Here  joiir  lardshi|]S 

:  of  a  rixa,  wh^re  one 

n  BriJfreioji  iliit;    he 

«ach  a  COM  killing  the 

lninf«r  ileaih  ;  much  l«u, 

killing  of  a  third  (wiiy : 

'  olMerTa  be  ancrls  fur- 


*wilt 


r,  l»<i 


of  theslaii^hlcr. 

omeiyet  i-lowr  Id  iht 

latnea  Caium  idTersa- 

I,  Kd  illi  tautum  norare, 

impnidenlGr  st  ictui  oliji- 

torcnl,  tune  certe  im|iru' 

ii  4HieliUD  rel  agfp-aTare  noi 

il  ipodvralorem  rixie  se  noo  nb- 

umaiibiiort  ex  propiDquo 

a  nedrnle  forte  remutior, 

re  naxuni  inde  reporiaMPt, 

rs  obiala  eat :  excusandiii 

,*TC(umr  tunc,  cum  occi' 

«i«dfui*Map]>iiift." 

lie  M  the  preirent  questioDi 

h  h  were  ■  rcMluiion  on  ih( 

ir  lnn<«lM[i«  see,  that  not- 

11^  killed,  theauthor  say« 

se  an|war,  ihai  there  «  n^ 

t  Mlier :    the  olbpr,  who, 

■naancc,  migbi  doi  ban- 

e  bMn  bprt  anrf 

a  tliat  came 

vltabehilM.  This 

H  itHiK  not  ap- 

B  kill    UcMirelnn, 

~  n  killed,  Ihii  he 
indeiJ ;    and 


tare.  A.  D.  172S.  [114 

bnnuse  «f  tlin  fblalily  of  killing  the  (leceued 
loni,  '■  qui  "tibito  rorpiM  siintu  ex  pnipinquu 
objecil.*'  An<l  ii|>Qd  nil  tbnse  groiiriiis.  wb 
humbly  b9ial,  tbatilBriUgelOTi hail  Weu  killed, 
there  WAuld  bare  been  nu  place  tor  a  CHpltal  pu- 
nish mctrf :  bnt ibenBeparalely,  whatever  be  id' 
that,  that  since  it  doee  Dot  appear  (nnr  cauunt^ 
rieaih  ffitt  not  follow)ihnt  there  wB«  a  cer- 
tain intcniicn  to  kill  bim,  tho  casual  kilting  of 
the  earl  ofStrathnHiv  cannot  bp  puniabable  ivilLi 
death. 

What  has  been  saii),  fully  rcmoTca  any  ar- 

Kment  that  may  lio  drawu  from  air  Geor^ 
ickoLisie'e  opinion,  "  Thui  lie  who  by  dim- 
lake  kills  one  tor  aitnlUer,  should  die:"  For 
your  Wilsbipsaee,  that  be siieaks  only  of  that 
cose,  wlien  one  man  ia  certanily  iittended  to  b« 
killeil,  but  another  is  killed  by  mistake,  bein^ 
)iiipitoierl  10  be  him  :  that  ia  not  the  case  noir 
bctora  v4>iir  lordships. 

And  til  this qiieaiion,  concerning  thepauml's 
iDtcnlbn  and  iteaigii-  'lie  cin^uniBtaDce  of  hi« 
bein^  overtaken  nilh  drink,  is  a  circa inMalica 
tliHl  ivninta  in  the  arf ument.  We  do  oot  say, 
thai,  heiiig  drank  affords  a  deftrnce  for  killing ;  DO- 
verlheleaK  it  isa  cireuinitatKC  whereby  tDkbow, 
there  wna  no  malice  or  dole,  especially  agoinat 
the  earl  of  Stmllimore;  since  erery  boity  raay 
conceive,  howes&y  ilin  for  a  nraii  that  Is  drimk, 
pDsbiBi;  nt  ODe,  even  to  atagger  upon  aootbeTf 
or  not  to  hare  the  judgtnent  and  presence  of 
mind  lo  draw  back,  when  thai  otlier  auddeoljp 
IhroWB  himself  in  t|ie  way  of  ihe  tbrusl. 

Wh.it  ia  laid  duffn  by  the  piinuen,  in  op' 
(HMition  to  all  this,  in  Iheir  int'ormaUon,  i*  ao 
fully  obviateil,  tbat  il  is  quite  needless  to  repeat 
ilieirnrgument;  only  whereas  they  say,  "That 
if  killin'^r,  notwiihilanriiii^  of  provocation,  bad 
not  beet!  capital,  il  ooiild  not  hare  been  a  doubt 
in  the  common  law,  wtictlier  a  hntbaud  oui;hl 
to  NufTer  deaib,  who  kitlad  his  wile  taken  io  ibtt 
actofailuttery  r"  But  we  apprehend,  that  tha 
direct  contrary  conieqiienee  ti)llow«.  that  if  liigli 
prOTocatinii  bad  not  affonled  a  iletence,  then 
mdeed  (here  could  nnl  hari^  been  a  doubl  ih« 
busbaml  must  have  died,  berause  high  proTO- 
cation  wa*  ail  that  be  had  to  plead  :  but  lti« 
doubt  was,  whether  a  provocaiion  of  that  kimH 
where  there  was  no  real  corporal  injury  lo  the 
husliand  bimsetf,  wua  aufficietit?  Aud  ilie  Ini* 
rfetermiues  that  it  waa;  and  couseqiienlly  c^la- 
blishes  the  rule,  tlial  hi^h  and  grievous  prura* 
cations  ought  to  alleviftle  ibe  piioi'^binenL 

The  br-ortnl,  that "  veranos  in  re  ilticila  te- 
nelur  <le  omai  evenia,"  olTordB  no  argument 
agaioit  ibe  panncl  in  this  oa«e  ;  nor  indeed 
hatb  il  been  much  insiittod  on  by  the  pursuer*. 
luii>.  It  IS  not  true  in  many  cases.  Uut,  ado^ 
It  holde  in  no  case,  except  with  regnnl  to  con- 
seqiitnees  or  evenU,  thai  happen  with  rrgar4 
lo  that  siiltjpct  or  oliject,  agaiart  »lK«n  or 
H  hich  Ihe  unlawftil  act  is  tlirecieil  =  aa  for  in- 
utance,  if  one  aeisfire  to  u  liouse,  be  is  giidty  of 
murder,  Ifa  tieraon  h«pi>cii  lo  bcbiirtii  id  tlirt 
hnure;  orifheunderiumea  hwisi*,  he  i«  linlile 
for  all  ihe  Bloods  iknt  m»y  he  dwlroyed  by  it> 
Ml ;    hot  be  ■•  not  liable  for  any  uitruMi* 


1 

i 


I 


1 15J  2  GEORGE  IT. 

damafi^e  tliat  may  happen  to  another  subject 
casually  and  by  areideut:  and  ihereforei  sup- 
pose it  were  proved,  that  one  unlawfully  inrad- 
in{?  another,  without  a  desifj^n  to  kill,  might  in 
some  eases  be  liable,  it' death  followed ;  yet  that 
can  only  be  with  reflrard  to  the  person  he  in- 
vades, but  never  with  regard  to  what  acciden- 
tally happens  to  another  person.  And  so  Carp- 
zoviiis  explains  the  matter,  an.  ].  §.  ult.  in 
these  woras :  **  Supra  dicta  enim  (quod  nempe 
dauti  operam  rei  illicits  iroputari  defaieat, 
quicqoiu  tuerit  prceter  ejus  intentionem  ex  eo 
actu  secutum)  procedunt  tantum,  quantum  ad 
subjectuni,  circa  quod  rersatur  ipsa  malitia  il- 
Hcite  operantis,  et  quantum  ad  ea  quee  illi  ob- 
jecto  per  se  et  immediate  junguntur,  autneces- 
sario  sequuntur ;  non  auten  quoad  illaquee  per 
accidensoriuntur,  a  re  ilia  mala  cui  opera  datar." 
ttesides,  it  is  certain,  that  the  brocard  is  no 
rule  at  all  in  the  matter  of  manslaughter,  other- 
wise there  never  could  be  such  a  thing  as  cul- 
pable homicide  ;  which  it  Is  plain  tliereis. 

The  next  thing  to  be  considered  is,  what  was 
and  is  the  law  of  Scotland  concerning  this  mat- 
ter P  and  first,  as  to  our  ancient  law,  the  pur- 
suers seem  to  be  the  first  that  ever  disputed, 
that  according  to  it  there  was  a  distinction  be- 
twixt slaughter  and  murder.  Sir  George 
Mackenzie  is  express  upon  it.  By  our  law, 
says  he,  slaughter  and  murder  did  oVold  differ, 
as  "  homicidium  simplex  et  premeditatum*'  in 
the  civil  law  ;  and  murder  only  committed,  as 
we  call  it,  upon  forethought  felony,  was  oidy 
properly  called  murder,  and  punished  as  such  ; 
for  which  he  quotes  the  express  statute,  pari. 
3,  cap.  51.  K.  James  1,  appointing  that  murder 
be  capitally  punislie<l,  but  chaud  melie^  or 
slaughter  committed  upon  suddeuty,  shall  only 
be  punibluble  according  to  the  old  laws,  and  se- 
■  veral  other  acts  of  parliament,  to  which  we 
beg  leave  to  refer  [See  the  abstract  of  them  at 
the  end  ;]  which  expressly  make  the  distinc- 
tion betwixt  forethought  felony,  and  slaughter 
^f  suddenty :  and  though  none  of  all  these  laws 
particularly  express  the  punishment  of  inau- 
slaughter,  as  they  could  not  will  do,  becaube 
that  wa:(  arbitrary  according  to  circumstances ; 
yet,  as  sir  George  observes,  the  opposition  and 
distinction  is  established  betwixt  slaughter  by 
forethought,  and  chaud  tutlle,  hud  the  punish- 
ment of  the  one  to  be  less  than  that  of  the  other : 
and  therefore,  we  apprehend,  we  may  leave 
tbui  point  as  clear  and  undoubted. 

The  pursuer  has  endeavoured,  to  no  manner 
of  purpose,  to  set  up  others  of  our  ancient  laws, 
in  opposition. to  those  obser\ id  by  sir  George 
Mackenzie,  such  as  the  third  siatatc  of  king 
Kobert  1,  which,  with  submission,  is  nothing  to 
the  purpose :  for,  first,  It  does  not  concern  ca- 
pital Climes  only,  but  any  crime  touching  limb, 
as  well  as  life,  iido.  Though  the  word 
slaugliter  is  mentioned,  without  adding  ^  bv 
forethought  felony,'  yet  the  same  thine  is  ada- 
ed  in  other  words,  when  it  says,  touching  life 
or  limb,  to  which  alone  the  act  relates,  that  is, 
forethought  felony ;  because  slaughter,  by 
Qhmud  milUf  touobad  ueitlier  life  or  limb.    Tm 


Trial  of  James  Carnegie^ 

title  of  the  act  is,  **  Alen  condemned  t< 
should  not  be  redeemed."    But  what 
to  the  purpose,  in  a  question,  who  sht 
condemned  to  death,  and  who  not? 

The  43rd  chap,  of  the  act  of  king  Re 
is  as  little  to  the  purpose ;  for  as  it  sp< 
hairships,  burnings,  reif,  and  shinghte 
very  plain  it  means  only  wilful,  prem 
slaughter,  otherwise  it  would  follow,  tl 
only  wilful  fire-raising,  but  burning  of  a 
by  neglect,  or  lata  culpa^  would  infer  tl 
of  death,  which  noboav  ever  dreamed, 
the  next  paragraph  makes  it  further  cle 
pointing  sheriffs  to  take  diligent  inqu 
*'  gif  any  be  common  destroyers  of  the 
try,  or  hath  destroye<l  the  king's  liegi 
hairsbip,  slaughter,"  &c.  Can  a  mai 
common  destroyer  by  slaughter,  except 
the  slaughter  is  supposed  to  be  by  foretl 
felouy  ?  Jt  is  certain  he  cannot ;  and  tht 
the  pursuer's  procurators  fall  into  a  grei 
take  in  law,  when  they  say,  that  ^if 
kenM  with  the  assize,  ^*  Si  attentus  tin 
assisam  tanquam  talis  malefactor,  condei 
tur  ad  mortem,"  must  relate  to  manslai 
because  the  sheriff  could  not  judge  of  nr 
It  is  directly  otherwise :  if  be  be  attaii 
the  assize  as  such  a  malefactor,  that 
eommon  oppressor- by  slaughter,  &c.  I 
be  condemned  to  deatli.  This  is  an  ex( 
from  the  rule,  that  murder  was  to  be  t 
the  justice-ayr:  this  law  appointed  ii 
tried  in  that  way,  in  case  the  person  a 
could  find  his  barras  or  borgh  to  com] 
next  justice-ayr ;  but  if  he  could  not,  th 
riff  was  immediately  empowered  to  trj 
by- the- bye,  this  does  not  concern  pai 
fact,  but  concerns  that  general  accusation 
ing  a  common  oppressor,  like  to  the  ca 
sorncr,  or  one  habite  and  repute  an  Eg 
Nor  can  the  lawyers  for  the  pannel  fi 
word  in  the  statutes  of  Alexander  2,  wh 
pursuers  refer  to,  that  docs  in  the  lea 
su])pose  that  niauslaughter  was  cap 
them :  the  direct  contrary  appears,  tha 
slayers  were  to  be  tried,  wiiethcr  ^u 
murder  or  not;  and  if  found  not  guilt 
they  were  to  have  the  benelit  of  the 
And  accordingly  Skccu,  in  his  annot 
refiTs  directly  to  the  acts  of  pari! 
which  sir  George  Mackenzie  takes  not 
establishing  the  distinction,  and  to  some 
English  acts  to  the  same  purpose. 

As  to  the  passage  cited  from  Skeen, 
Treatise  of  Crimes,  tit.  Slaughter,  there 
tainly  a  direct  blunder  in  the  printing  ;  o 
stead  of  these  words,  **  or  casually  by 
melle,"  probably  it  ought  to  have  beeUj 
casually,  or  by  chaud  melle ;"  for 
wise  he  directly  contradicts  himself,  an 
acts  of  parliament  which  prove  the  vcr 
trary  of  what  the  pursuers  would  mali 
assert:  yea,  the  very  next  paragraph 
blisheth  the  distinction  in  these  wonis, 
that  the  gyrth  or  sanctuary  is  nae  ref 
him  wha  commits  slaughter  be  foretl 
fekNiy ;"  trgo^  it  was  t  refuga  to  him  tha 


fff]      firtht  Murder  of  Ike  EaH  of  Slrathmore.  A.  D.  1728. 


[118 


and  chaudmelle  ceased;  and  that  it  Vftm  nerer 
objected,  that  malice  or  premeditate  desigi'n  was 
requisite  to  make  the  crime  capital."     And  for 
this  they  take  notice  of  two  cases,  Ctirric 
a^inst  Fraser,  July  1641,  and  Bruce  against 
Marshal,  April  1C44.     But  in  the  first  place, 
the  procurators  for  the  pnnnel  with  reason  say, 
that  i£  that  happened,  it  was  an  error  in  judg- 
ment ;  for  since  the  distinction  was  established 
by  the  old  laws,  an<l  that  there  was  no  law  at 
that  time  altering  or  repealing  those  old  laws, 
the  abolition  of  popery,  and  of  the  flying  to  th« 
kiik  in  consequence,  was  no  reason  for  jutli^infj 
contrary  to  tbecif  il  law's  that  wore  still  standing; 
and  if  an  esca|)e  of  that  kind  happened,  it  must 
be  attributed  to  the  over-great  zeal,  anfl,  if  ne 
may  be  allowed  to  say  it,  a  sort  of  cnthusiastie 
keenness  of  those  times :   And  we  do  appre- 
hend, that  the  act  1649,  and  the  act  of  Charles 
S,  were  intended  to  correct  the  errors  that  by 
too  great  zeal  bad  then  crept  in. 

At  the  same  time,  as  to  the  two  cases  cited, 
they  are  nothing  to  the  purpose;  for  as  to  the 
first,  which  is  Fraser's,  there  was  not  one  cir- 
cumstance pled  or  proTcd  which  could  make 
the  slaughter  chaudmelle:  But,  on  the  con« 
trary,  it  appeared  direct  premeditate  murder, 
DO  real  provocation,  but  a  quarrel  about  a  staff; 
a   murder  committed  in   revenue,  upon  the 
slayer's  hearing  the  person  killed  had  murdered 
his  brother,  which  plainly  implied  a  preme- 
ditate design.     What  argument  this  can  afford, 
is  submitted.    This  indeed  may  he  remarked, 
that  the  case  gives  some  notion  of  the  spirit  of 
the  times;  the  presbytery  took  evidence  whe- 
ther the  murder  wus  accidental  or  wilful,  they 
found  it  to  be  wilful,  and  no  ways  ac<'idcntal ; 
their  having  done  so,  was  taken  us  evidence  in 
court,  and  even  the  wife  of  the  deceased  was 
sworn  as  a  witness :    things,  it  is  hoped,  not  to  * 
be  drawn  into  example  ;  only  so  far  it  shews, 
that  even  then  it  was  a  considi-ration  i»y  the 
presbytery  themselves,  whether  it  was  a  wilful 
murder  or  not  i*   Which  seems  to  point  at  an 
establishment  of  the  distinction.     But,  in  short, 
there  is  not  one  circumsttiuce  in  the  \«  hole  case 
that  could  exclude  the  premeditation  or  fore- 
thought, but  all  quite  on  therontrary. 

The  other  ease  of  Marshall,  in  the  year  164 1, 
is  as  little  to  tiie  purpose;  he  was  lib*  lied  tor  wil- 
ful murder,  and  he  confessed  it,  without  pleading 
remains,  that  according  to  the  law    any  defence,  because  indeed  he  had  iimmo.     Jle 

in  his  confession  adjected  some  cirruiustances 
which  might  have  o'lfeu  sonieroloiir,  hut  in- 
deed very  little  for  a  ddcnce:  !*nt  he  otlere<l 
nopniof  even  of  those  circunistauers ;  and  his 
own  declaration  could  be  no  evith  nee  of  ih'Mn. 
They  were  not  inlrinsie.  but  «\iriiiNie  qualities 
of  the  dec'laratitm.  lie  \\iu\  {.nveii  rt'penti'd 
stabs  with  a  knife.  W  here  k  ouuI  1m*  th"  f|iu>*i- 
tion  that  that  was  murder  f  AudtlieNt'  tieiu^;  :ill 
the  instances  the  pursuers  bring  heiore  the  :irt 
of  Charles  2,  ii  is  plain  they  prove  nothni:;'  by 
them. 

As  to  the  act,  Ch:ules  2,  [Sec  tlic  net  at  tho 
end]  it  is  humbly  insi<4ted  for  tin;  paii:iel,  that 
it  introduces  no  new  law  against  any  perkoa 


ihlrtter,  not  by  forethought  felony, 

d  hn  eten  from  the  arbitrary  ponisli- 

rfouibughter.     And  Skeen  himself, 

h  hii  OfGeitioD  of  tbe  words  chaud  melted 

Igil  Mil  ii  I^tio  rirft,  **  an  hot,  sudden  tuilzie, 

vMili*  which  isopponed,  as  contrary  to 

Ifdony ;  and  cites  the  act  James  1. 

.kntteontrary  in  our  law,  if  the  effect 

■kMot  be  tbe  'same  ?   And  upon  the 

'Miooglit  felony,'  he  in  like  man- 

b  tke  just  distinction,  and  supports  it 

MfHttwity  of  Cioero,  in  his  treatise  De 

flU^  skre  be  is  writing,  as  a  moralist, 

■latiiai  orator. 

Hi  pmaen'  answer  to  the  8th  act,  6  pari. 
X  tifBte  trifling;    for  nothing  can  be 

eki  tbe  opposition  there  stated  betwixt 
fh  fekmy  and  other  slaughter :  and 
*e  let  statutes,   ••  that  if  it  be  fore- 
fUMv,  tbe  slayer  shall  die  ;'*  tbe  con- 
tliobrioiis,  according  to  the  plainest 
rkric,tliat  if  it  be  not  forethought  felo- 
MH  not  die,  otherwise  tbe  act  is  ab- 
id  IS  to  sir  George  Mackenzie's  ob- 
ipn  these  words,  it  is  certainly  not 
iely  placed  as  an   observation  upon 
keime  it  plainly  relates  to  the  act  of 
fyiod  therefore  falls  to  be  considered, 
KCDme  to  argue  the  import  of  that  act. 
tfnoen'  observation,  by  way  of  an- 
il Ik  Slit  act,  pari.  3,  James  1,  is  en- 
■vkt;  for  if  it  extend  the  difference 
■  wHhooight  and  chaud  tneile  to  all 
^'ni  u  well  as  manslaughter;  then 
it  establishes  the  distinction  in  the 
tf  MBilaaghter ;  and  so  sir  George  I^Iac- 
HkVkfwise  says,  in  his  observations  on 
^"^vell  is  in  his  Criminals.    And  as  to 
■■fc  observation,  that  chaud  vielle  is  by 
''pBM  law  punishable  by  death ;    that 
■ifalotheact  of  parliament  Charles  2, 
■w lie  examined  with  it. 
l*"  pvraers  have  further  pled,  "  that  the 
j*^l  if  the  sanctuary  might  he  competent 
Vwcnnei  were  capital ;"  which  he  founds 
^  tbe  statutes  of  Alexander  2.     But  this  is 
disputing ;  for  if  the  flying  to  the 
joioed  with  repentance,  and  so  forth, 
the  crime  not  capital,  it  is  all  the 
■wfhiof ;  that  is,  in  effect,  to  render  the  crime 
"apiujooty  by  another  form,  but  still  the 


^piffl  of  death  was  to  be  inflicted.     At  the 
^*  buie  that   statute    concennng    reifs, 
■kwhy  repentance  abs4dves  from  the  punish  • 
JM|  is  somewhat  |»eculiar,  and  docs  not  at 
I  CSDtradict  the  other  laws,  which  make  or 
JpK  chfiud  mtlU  not  to  lie  capital ;  and  the 
■  pin  nf  thesutate,  ap|>ointing,  *'That  if 
NUjUB  fly  to  the  kirk,  the  law  shall  l>e 
Mild  observed  to  them,"  establishes  the 
K  that  if  they   were  not  found  murderers 
Ifcrtbought,  I  bey  were  to  be  returned   to 
pdMry,  and  frecil  from  punishment. 
niionamsaj,  "That  after  the  Reforma- 
^■Mfhe^KS  onr/s  was  in  effect  abolished, 
^ii  irtiocttoo  brtwixt  forethought  felony 


119]  2  GEORGE  II. 

accused  of  slaughter,  but  ascertains  somewhat 
in  their  favour,  viz.  **  That  casual  homicide, 
homicide  in  lawful  dt^fence,  and  homicifle  com- 
mitted upon  thieves,  Ace.  shall  not  be  punished 
by  death.  And  then  further  statutes,  That 
even  in  case  of  homicide  casual,  it  shall  be  lei- 
some  to  the  criminal  judge,  with  advice  of  the 
counsel,  to  fine  him  in  his  means,  &c.  or  to 
imprison  him."  This  law  seems  introduced 
to  correct  some  abuses  that  bad  been  ;  whereby 
homicides  falling  under  some  of  those  descrip- 
tions, either  had  been  punished  with  death,  or 
at  least  that  it  had  been  made  a  doubt  of,  if 
they  might  not  be  so  punisbed.  W  hat  those  cases 
were,  does  indeed  nut  appear  frotu  tlie  records, 
80  far  as  the  pannePs  procurators  l^now ;  hut  it 
seems  such  cases,  at  least  such  doubts,  were. 
But  then  the  act  does  not  determine  what  was 
meant  by  casual  homicide,  and  does  by  no 
means  say,  that  oothinff  was  to  be  reckoned 
casnal  homicide,  except  that  which  was  merely 
accidental ;  but,  on  the  contrary,  it  leaves 
casual  homicide  to  be  explained,  accortling  .to 
the  construction  of  former  laws,  wliether  our 
own  laws,  or  the  laws  of  other  nations. 

2do.  It  is  plain  from  the  act,  that,  by  casual 
homicide,  something  is  understood  quite  dif- 
iereikt,  at  least  beyond  slaughter  merely  acci- 
dental ;  for  the  act  is  concerning  the  several 
degrees  of  casual  homicide :  And  so  even  ho- 
micide in  defence,  and  homicide  committed 
upon  thieves,  &c.  are  brought  under  that  ge- 
neral description  of  casual  homicide ;  and  these 
last  kinds  are  given  as  exemplifioations  of  the 
general  description ;  which  shews,  that  casual 
homicide  was  intended  to  be  opposed  only  to 
slaughter  dolote  committed  either  by  preme- 
ditate forethought,  or  malice  presumed  to  be 
Uken  up  from  Uie  circumstances  immediately 
'preceding  the  act;  and  therefore,  however 
critisal  exceptions  may  be  taken  to  the  rule, 
yet  materially  there  is  no  strong  objection  lies 
to  it,  because  when  '  casual'  is  taken  in  the  ex- 
tensive signification,  as  opposite  to  fraudulent 
and  dolose  slaughter,  all  the  species  mentioned 
in  the  art  do  properly  enough  fall  under  it, 
and  are  degrees  of  casual  homicide.  And  in- 
deed it  is  worth  observing,  and  makes  in  this 
case  for  the  panuel,  that  the  rubric  cannot  be 
said  to  have  been  iiuligested  or  adjected  by 
mere  inadvertency,  since  the  same  rubric  is 
maile  use  of  in  the  act  1649,  and  again  repeated 
in  the  act  1661,  so  many  years  af\er. 

And  this  rubric  afTonls  another  plain  argu* 
ment,  that  the  legislative  did  at  least  consider 
that  there  might  be  degrees  of  casual  bomt- 
cide,  and  consequently  they  could  not  under^ 
stand  by  that,  onlv  merely  accidental  slaughter, 
strictly  so  callca :  Since  there  can  be  no  de- 
grees of  that ;  it  is  but  one,  and  does  not  admit 
of  decrees.  And  therefore  this  is  sufficient  to 
shew,  that  more  was  meant  than  the  pursuers 
incline  to  admit ;  and  if  more  was  meant,  that 
can  allow  of  no  other  construction,  than  to  bring 
under  these  words  what  the  lawyers  call 
**  culpalde  homicide,"  so  as  that  your  lordships 

•ad  tae  juiy  moy  JQ^gv  fiwa  oiwTnwwmwt^ 


Trial  of  James  CamegUf 

whether  the  slaughter  is  to  be 
casual,  or  really  malicious,  from 
pense. 

The  last  part  of  that  act  of  par 
ther  enforces  that  matter,  which  g 
not  only  to  fine  for  the  use  of  the  : 
tions,  but  even  to  imprison  for  cast; 
Now,  how  is  it  possible  to  believe,  it 
with  anyju8tice,tbata  man  might  b 
for  a  fiict  intjrely  innocent,  and  no 
culiHtble  or  criminal?  Yet  such  hone 
accidental  is :  And  tlierefore  this 
monstration  that  the  legislator  und 
under  the  description  of  casual  ho 
a  fact  might  eome  as  carried  a  culf 
it,  and  was  not  absolutely  accid 
nocent. 

And  this  being  the  phiin  meanin 
it  must  remain  only  to  consider,  ^ 
pable  homicide,  or  more  particular! 
case,  does  not,  in  a  true  and  legi 
under  the  words  *'  casual  homicid< 
hope  we  can  he  under  no  difficulty 
good,  from  what  has  been  alread; 
that  even  by  the  Jewish  doctors  a 
ters  ofthe  Mosaic  law,  homicide  w 
and  foresight,  hath  beeu  called, 
micide;'*  the  passage  above  cit< 
collation  of  the  Mosaic  and  Ronr 
pressly  shews  it.     8do,  all  that  b 
from  the  texts  of  the  civil  law,  i 
prove  it;  since  they  directly  ca 
**  ex  subito  impetu,  ex  calore  ii 
rixa,"    where   there    was  just 
casual ;  '*  casu  magis   ^uam  v( 
casui  magis  ouam  noxae  imputam 
all  the  rest  or  their  expressions  | 
nominating  all  slaughters  casual 
sense,  except  that  which  is  done 
occidendi.    Slio,  The  expressions 
old  laws  prove  the  same  thing ;  t 
slaughters  are  called  chaud  meii 
medley^  which  is  casual :  And  so  S 
in  the  very  place  the  pursuers 
manslaughter  committed  voluntar 
thought   felony,  or  not  (which 
degrees  be  received)  casually  by 
There  your  lordships  see  cAaiMf 
pressly  brought  mider  the  descripi  i 
and  so  that  being  the  case,  we  a 
letter  of  the  act  Charles  9,  we  i 
under  the  first  branch  of  casual  ho 

And  as  we  apprehend  this  hoU 
so  it  holds  more  particularly  in 
case,  where,  whaterer  was  de«i| 
Brtdgeton,  yet,  as  to  my  loni  Stn 
killing  was  casual,  and  therefore 
nnder  the  words  of  the  statute. 

It  affbixls  DO  solid  argument  ag 
the  act  of  parliament  bearn  these  v 
removing  of  all  qiieatioD  and  dow 
arise  hereafter  in  orioiinal  pursuit 
tpr."  For,  Imo,  Those  wonls  i 
understood  with  r^ard  to  the  parti 
ed  Dpon,  that  it  is  for  removing  at 
thooe  partieiiUars ;  for  it  can  nexar  I 

thai  Ibif  or«py  M  of  i^iriiafMit  1 


ft/the  EarinfStTnlh: 

en  B{t«i  DDfoivseta  casra,  mkoy 
'illupjmn  that  roulil  --'  ''"  — 

of  tb>[  law :  I'ur  in 


A.  D.  1728. 


e,  ho- 
ifiutfamob,  Btrkitlj 
^■■^,  ii.li  iiiini'i'  iiiFiiF  nf  tlie  noi^i;  or 
kaaa^  cniiiEiititi!  ill  ^iii.'ii>abDK  Uie  mcspc 
rfklWKiuillj  j in |jr ironed,  Bndeuilem- 
■■nfiaia^iti :  anil  mtoy  other  caw!  mn; 
kl%«i  fii'i  Jito,  AccunlrDK  lu  tlie  inter- 
iili^n,  Ibe  *clof  parlianienl 


Cl-J 


ihcwnae  we  give  ihem;  sod,  ou 
i>  t  dnta  aM  reinote  all  ^iieslionH, 
'luwiicidn,  anil  lliis  tpry  case  be  not 
bilmi  tlie  law  ha« •Uiutsil  (iiithinB: 
B)b«r  inie  <*■;  or  other,  but  hsth 
-I  upon  murder  merely  accideolal, 
kitUint,  and  the  ol'liers  lliprein 
,  thai  it  may  he  pl?<l  with- 

.   B  culpable  lioiFiicide  ta  a 

||f  iHarioide  in  deteuce  ;  lliouj.'ti  oat 
■"  ^"*llre  (if  life,  it  is  in  dof'ence 
'  h^vry  thrcKteotd,  and  ex- 
jwior  injury  alreaily  i^feu  : 
noaideratinna,  ue  humbly  a  |>)ire- 
181  of  obrlunieiit  makea  DMhiii|i|' 
^DM,  hut  ratlier  favuui'M  him, 
nl  a  hnmidilt^  imrely 
tlint  waa  killed  :  and 
irely  diiiingiushe$  hi* 
'  olber  cue  that  hnih  been  tried 
parliainenl-  And  it  may  not 
lu  ii»Upe,  ihut  air  Geoi^e  Mac- 
"  Tb»  wurd  "  cbhuU,'  ia  the  ru- 
terfik^ia<i,  I*  ukeu  in  the  bx  W|n>>fica- 
'>Kk."  Aad  »  >-y  not  Iheu  tali*  it  in  tbe  tAtae 
lw%lfcali   n'in  tlic  alatutnry  )Mrl  f 

jttivw  ptwin  tu  [akr  ludice  d'  sir  George 
lil^Mw'a  DbaervaliniiB  upon  the  5tM  act, 
^mn.  AnJ  in  itu)  fir«l  (ijacr,  it'cir  Georce 
liflffiHBd  lo  go  aa  far  in  hi«  niiininn  tw  tEe 
■IMa  pIraJ,  we  must  beg  leave  to  oiiiioDe 
lfli«,i«l  sAoiit  thoiiitvrprelaliiiD  ol  il  lo 
W0  ImMiI^'  Judgment,  as  ntil  suffidiently 
■nanng  hM  opinion.  2iIo,  sir  George  saya 
"  "  '  ~  "  U  ihe  alauKhter'f  hetii^  cmduI  in 
•e,  where  the  lilotv  was  inlended 
■er  MTiuk  by  Iktatity.  3tio, 
Il  (0  Hu  liir  aa  the  ]iurauen 
Id  auMdi  tU«»i ;  Ibr,  in  hit  tibHTTBtion  on 
M  ut4  ilu  uri,  liB  nnly  «ayi  in  |^neral, 
Tbal  cA^itd  mtiit  at  Aomicidiiun  in  rixa  com- 
^iMw,  II  npital  Ijy  our  [ireMUl  kw :"  and  kii 
im  aamaaj  v^'Mni  Ibr  iuMaace,  where  the 
A*  m  tJio  priiTokor,  wlit<ra  he  reilffatre 
ktAv>  )■  auch  a  maimer,  as  to  shew  a  Ibre- 
bvkt  a^  rnriBCil  deii^n,  although  not  ni'e- 
■UU«d  lor  a  lonj;  intvrtat  ut  lime  betore : 
m  m  tiwrce  dnm  l>v   »u   mtuuiq  uy,  that 


4ltcraarda  I'l  l«  iioIiC(nI. 
rtatiuo  liji  III  till'  OOlh  act  il  no  wayi 
'    "  That  uuirder. 


il  piiQuhatite  nilh  death :"  by  which  lie  n 
mr-an  pretiivdiiatcil  tnatice,  and  that  ta  t 
liir  no  doubl  malice,  wlieiv  it  oui  be  pri-iu 
IVoin  Ihe  iict  ithelt',  anil  where  tli«  counary  _ 
not  >|ipear  from  circiiuislances,  ii  puiiisbl 
by  death,  without  further  lurellioi^hl ;  '■ 
then  he  aubjoins  an   esce|ilio.  '  '  '     ' 

the  mailer  where  it  was,  "  exoepi,"  sajBta 
"  it  be  fMUoJ  j"  that  is,  aecordintr  lo  Ihe  i 
of  I  lie  law :  and  so  the  gueslion  remaiut,  w 
caaiial  in  Ihe  nense  ol'  that  law  ? 

The  pursucra  u«o  an  argument,  which  t( 
to  lie  or  no  force,  "  That  if  inaae1aught*r  *■■ 
not  capital,  llien  the  crawn  could  nnt  parilon 
any  capital  slau^terj  because  by  »ur  Uw  the 
crown  could  not  paidon  murder."  IVe  mit;ht 
easily  ailmit  the  whole,  wilhoul  biiniog  our 
argument ;  for  if  it  be  true  that  the  crown 
could  not  nanloD  murder,  then  ii  in  likewice 
true  that  ne  coiiJd  not  panluu  any  shiiighter 
tliat  was  cftpital ;  because  no  daughter  m'aa 
capital  but  murder:  neierihelesii  the  puskion, 
that  llie  crown  could  nol  pardon  murder,  ii  nM 
supported  by  practice,  and,  we  doubl,  not  by 
nor  law;  because  iu  aereral  caaei.  cten  ok' 
murder,  Ihe  very  thiutc  statuted  is,  "  That  lb* 
|ierB(in  of  the  criminnl  slmtl  be  in  the  kisg'a 
will ;"  consequenily  ihe  kii^  caji  pudon,  u 
well  aa  order  to  he  put  to  deaui. 

The  pursueri,  in  their  InfutmatJuii,.  next  gw 
on  lo  nienlion  a  ^enl  many  caaeii  ihii  bavft 
been  judged  by  the  Coui'i  since  tlie  act  IfiGI  ; 
anil  the  first  menlioned  is  ihitt  of  Wm.  Dou^- 
la>i,  which  appears  iu  the  Ilecords,  and  i»  no- 
lie^  by  sir  George  Atackeozie,  and  is  indeed 
nuticedbv  hiui  u  afoihtdulinnfor  saiui-ihinga, 
wherein  be  leema  tn  go  tun  far.  But  Ihi*  ewe 
will  iieief  deicj'ie any  regard;  it  \ias  ilwaja 
been  linked  uprm  as  a  liaril  one,  end  we  ars. 
ulV-iId  a  tejiroach  on  the  justice  of  the  nation. 
But  at  lh«  same  lime  the  fdulidid  not  lye  oa 
IlieCourij  il  uas  tiuly  Ihejiiry  ;  fur  ihe  Irial 
went  in  i^eiieral  upon  tlie  url  and  {larl ;  awl 
there  Mppears  no  piiriicahir  pleadings  to  this 
purpose  un  record  in  thut  case :  tu  that  what 
sir  GeoT^  Bays  of  il  must  he  froin  mere  me- 
mory of  tbiuifs  ont  thouKix  Ri  to  be  recorded. 

The  next  case  mentioned  i»  that  ol  >'ico|. 
son,  in  the  year  1GT3,  which  can  never  tnajM 
for  the  piirsuem,  Iiei-aiise  there  your  lordships 
aiulained  boih  tiie  libel  and  the  defeuoe,  Iboiigli 
indeed  Ibe  defciioe  wa»  not  prated :  and  ihm* 
fure,  if  the  pursuers  say,  Ihnt  the  dclience  waa 
U|>on  chauj  mtllr,  or  culpalde  homicide ;  the 
case  is  witli  us,  because  your  lordships  aui' 
taiaed  Ibe  defence.  And  eiUuiugJi  i|i  reality 
Ihe  crinie  was  (trored  to  be  ttilfut  murder,  and 
the  derciiie  noi  proved  ;  yet  so  far  it  is  on  th« 
paunel's  side,  ihni  ihc  advitLate  iiuisied  Nicol- 
son.  was  vcnuni  in  re  iltkita,  by  varrjins  a 
gun.  which  be  ncknuwledued  uaed  lu  gu  naou 
haH'-beud;  yd  y»ur  lordsiiip<i  •usiained  tba 
ilef^iioe,  •'  That  the  gun  weui  offiu  a  slruiT* 
gle,"  Aud  if  an  arguneol  from  a  Uwycr'a 
pIcBdiug  be  Kood  for  any  l1>ing.  sir  George 
ftliLuktuixic  idi-d  for  the  pannel,         ''    ' 


'  123]  2  GEORGE  IL 

•n,  *'  That  there  was  no  prejudice  against  the 
|>er8on  killed,  and  that  the  gun  went  off  in  a 
■trufr^e."  But,  indeed,  the  case  is  naught  in  the 
argument,  and  it  seems  ?ery  strange  why  it  is 
cited :  it  is  true  the  man  was  said  to  be  drunk, 
and  there  was  not  a  pre? ious  quarrel ;  but  then 
there  was  no  provocation,  no  justa  causa  ira- 
cundiay  and  no  iracundia  at  alt ;  but  the  gun 
was  twice  deliberately  snapped,  and  the  third 
time  the  man  was  killed. 

The  third  case  mentioned,  is  Murray  contra 
Gray,  yet  less  to  the  purpose  than  any  other : 
for  there,  the  giving  the  wound  was  libelled  so 
far  premeditate,  that  the  slayer  followed  the 
person  out  or  the  house  where  he  was,  and 
killed  him  without  an^  provocation :  and  not  one 
single  fact  was  pled  \n  defence,  but  a  strange 
demand  made,  that  the  lords  should  make  an 
inquisition,  in  order  to  discover  who  was  the 
first  aggressor ;  but  it  was  not  once  pled  that 
the  defunct  was  the  aggrressor  or  provoker. 
What  can  be  the  meaning  of  citing  such  cases? 

The  next  case  cited  is  that  of  AinI,  in  the  year 
1693 ;  which  indeed  is  something  more  to  the 
|mr(K)se,  but  yet  does  not  answer  the  pursuers' 
intention :  for  the  lords  did  not  there  find,  that 
every  homicide  was  capital,  except  what  was 
merely  accidental ;  they  indeed  sustained  the 
libel,  and  repelled  the  defences,  which  were 
mainly  founded  U|M)n  provocation  hy  ill  words 
from  a  woman,  and  her  throwing  a  chamber- 
pot at  the  pannePs  face,  who  was  a  soldier : 
which  the  lords  did  not  find  sufficient  to  excul- 
pate from  the  libel,  which  bore  reiterate  strokes 
to  have  been  given  the  woman  in  her  own  door 
(which,  by  the  b^re,  tvas  hamesucken)  she 
thrown  over  ihe  stairs,  and  pursued  by  the  then 
pannel.  That  case  was  very  singular :  first, 
an  attack  upon  a  woman  by  a  soldier,  who 
ou};ht  to  have  contemned  insults  from  the  fe- 
male sex,  at  least,  not  returned  them  with  any 
blows :  DO  injury  of  that  kind  from  a  woman 
can  justify  blows  given,  much  less  reiterated 
blows,  and  deliberately  trampling  to  death, 
throve  ing  her  over  her  stair,  and  still  continuing 
to  pursue  her :  there,  the  presumed  difference 
of  strength,  and  difference  of  the  sex,  made 
such  an  attack  a  barbarous  murder ;  just  as  an 
invasion  by  a  much  stronger  man  a^inst  a 
weaker,  or  by  a  man  against  a  woman,  although 
not  with  a  mortal  weapon,  would  make  a  blow 
with  a  mortal  weapon,  given  by  such  a  woman 
or  weaker  person,  come  within  the  description 
of  self-defence :  which  is  a  case  that  lawyers 
state,  although  the  same  thing  would  not  be 
good,  if  they  were  of  equal  strength,  or  that 
the  invasion  was  by  the  won'.an,  or  person  of 
weaker  strength. 

Another  case  mentioned,  is  that  of  Carmi- 
•hael  in  the  year  1694.  But  sure  your  lord- 
ships must  l>e  weary  of  so  many  cases,  so  little 
to  tlie  purpose ;  for  neither  there,  is  there  one 
circtimstance  pled  upon  to  exclude  forethought, 
or  to  show  that  the  thine  was  casual  in  any 
sense ;  but  some  trifling  dyjections  against  the 
firm  of  the  libel :  only,  indeed,  drankeDntss, 
by  itself,  was  foandcd  on,  which  your  kirdships 


IVial  of  James  Carnegie^ 

did  not  sustain.    And  who  can  doubt  i 
be  sop 

The  seventh  case  mentioned  by  the  pii 
is  that  of  George  Cuming,  in  tlie  yeai 
And  upon  locking  into  the  case,  it  n 
owned,  that  it  seems  a  very  narrow,  bar 
but  then  the  whole  burden  of  the  pi: 
pleading  turns  upon  this.  That  supposin 
was  a  rtxa,  and  that  the  thing  happenc 
a  sudden  quarrel ;  yet  Cuming  himself  < 
first  provoker,  and  the  aucior  rixa,  and 
fore  could  not  plead  the  benefit  even  < 
defence ;  whicn  indeed  brings  the  case 
what  all  lawyers  ag^e  on.  And  had 
been  for  that  circumstance,  it  is  imposs: 
decision  could  have  gone  as  it  went :  fo 
feet,  the  kingf's  advocate  admitted  the  d 
barring  that  circumstance ;  but  insistei 
that  as  what  governed  the  case.  Yet  s 
decision  is  narrow. 

The  pursuers  also  mention  the  case  o 
net  of  Carlops,  anno  1711.    But  it  is 
ajgainst  them ;  and  it  being  to  be  noli 
the  pannel,  shall  not  be  dwelt  upon  here 

The  next  case  is  that  of  Hamilton  of 
anno  1716 ;  which  does  not  all  meet :  fo 
a  plain  murder  was  libelled,  that  the 
first  made  several  pushes  with  his  swo 
scabbard  upon  it ;  and  not  content  wit 
drew  the  sword,  and  gave  the  defunct  th 
tal  wound.  And  no  provocation  was  ple« 
on  the  part  of  the  pannel,  except  what  w 
bal  only.  And  the  only  real  injury,  by  s 
with  the  sword  and  scabbard,  was  ad  mi 
have  been  given  by  the  pannel.  And  i 
it  was  there  pled,  that  the  defunct  I 
rushed  upon  the  sword,  that  was  ronti 
the  libel.  And  if  the  fact  had  come  so  c 
libel  would  not  have  been  proved.  And 
fore,  that  case  does  not  all  meet;  foi 
were  not  sufficient  circumstances  to  c 
the  dole,  or  so  much  as  to  make  a  honn 
euiposum. 

Another  case  they  mention,  is  that  ol 
mas  Koss,  and  Jeffery  Roberts,  20th 
1716 ;  which  makes  against  the  nursuei 
is  set  forth  by  themselves :  for  there  tli 
did  sustain  the  defence  of  provocation  by 
receiving  a  blow  on  the  face,  being  pullet 
to  the  ground,  and  beat  with  a  great  s 
car- rung,  relevant  to  restrict  the  libel  tos 
trary  punishment.  And  thongh  the 
**To  tne  imminent  danj^erof  his  life,*' 
sert,  as  they  were  pled  m  the  defence ;  ^ 
was  not  a  fact,  but  a  consequence  inferrc 
the  being  struck  with  a  sticK.  And  if  th 
culum  vita  bad  been  the  foundation  on 
the  interlocutor  went,  then  it  must  hav* 
unjust ;  because  no  man  alive  ever  dc 
that  a  man  in  self-defence  might  lawful 
without  being  subject  to  any  arbitrary  p 
ment  whatsoever :  but  the  case  was,  th« 
lordships  found  the  provocation  and  real  i 
reduced  the  fact  to  a  homicidium  cul 
Yon  indeed  sustained  the  reply,  that  tl 
funct  was  held  by  Jeffrey  at  the  time  of  i 
ing  the  wound,  becaoM  tbit  oxdodcd  tl 


for  the  Murder  of' the  Earl  of  Strathmore.  A.  D.  172S. 


[125 


oT  the  pinnel's  being  unon  the  ^iinJ 
be  gave  the  wound,  and  made  the  fact 
It  to  murder ;  because  it  never  was 
d,  but  if  one  stab  another,  especial iv  with 
*,  which  is  stabbin|^  in  the  must  baruamus 
when  that  otiier  is  held,  and  so  put  oot 
ilaie  of  Joine  further  injury,  that  is  mur- 
jf  the  la  w  of  all  nations. 
tfonoers  likewise  mention  a  case  of  Da- 
i^  without  noticing  either  date  or  circum- 
■;  and  therefore  the  pannel  must  con- 
Ibere  was  no  defence  projiosed,  exclusive 
Me  or  forethought, 
caaeof  Lindsay  and  Brock,  the  Greenock 
I,  is  very  far  from  nutting  the  ca^e  out 
k,  or  indeed  touching  it  at  all.  The 
18,  that  the  defunct  was  enticed  out  of 
Be,  and  was  attackefl  by  two  at  the  same 
asd  when  he  and  they  were  on  the 
Ij  one  of  them,  which  came  out  to  be 
y,  slahhed  him  in  the  throat  with  a  |)cn- 
Tbere  your  lordships  did  not  sustain 
■e  as  capital  against  them  both,  even 
ae  art  and  part,  but  only  against  the  one 
Nokl  appear  to  have  given  tlie  stab,  and 
■K  ont  to  be  Lindsay :  but  tlien  indeed 
ood,  not  without  difference  in  opinions, 
vcriheless  he  had  the  benefit  of  the  in- 
y^  upon  this  foundation,  ihatthongh  the 
MM  was  dolosumy  because  of  the  cir- 
laers,  yet  it  was  not  from  malice  preme- 
:  and  the  majority  were  of  opinion,  that 
JRBnity  excluded  nothing  but  prcniedi- 
■nier,  and  did  not  touch  any  case  done 
a,  notwithstanding  tlie  person  guilty 
W  the  auclor  rixa.  This  does  by  no 
I  ^etertnine  any  question  lietvrixt  a  dolo- 
ai  cklposum  homicidium  ;  for  that  fact 
safitd  to  be  do'osnmy  and  indeed  so  found. 
ne.  u  proves  that  an  indemnity  may  reach 
l^ameiJium  dolosum^  ^^  here  the  dole  arose 
^ely,  and  not  ex  iutcrvallo  ;  hut  that 
oth.ng  to  this  question,  nor  is  it  proper  to 
ipiiii  the  argument  about  the  iudenniity, 
lai  the  judgment  is  given. 
r%<e  of  Mathews,  the  soldier,  the  pur- 
idmit,  was  of  the  same  nature,  and  so 
no  other  answer;  only,  that,  in  that 
hirre  were  no  circumstances  sufficient  to 
e  the  dole,  or  make  it  only  a  culpable 
de. 

M  are  all  the  cases  the  pursuers  have 
'ned.  and,  if  numbers  would  do,  no  doubt 
is  enough ;  but  your  lordships  are  to 
bow  far  to  the  purpose :  and  one  thinj^r  is 
Uible  with  regnrd  to  them  all,  that  not 
them  touches  the  cn*i**  in  iiand,  in  so  far 
?erDS  the  slaughter's  being  casual  as  to 
d  Strathmore,  the  invasion  being  intend- 
iDfl  Bridgeton. 

DOW  the  <xiunsel  for  the  pannel  be;;  leave 
notice  <d'  several  decisions,  even  binre 
vhich  directly  establish  the  point  pled 
pannel ;  ami  thc^  first  is  I\Iason's  case  in 
ar  1G74,  to  he  seen  in  the  Itecord  ;  and 
iffrred  by  sir  George  Mackenzie.  Ala- 
is  accuitd  of  killing  Halnton  j   tlia  de- 


fences were  three,  first.  That  Ralston  had  fol- 
lowed Mason  from  house  to  house,  at  last  put 
violent  hands  upon  him  ;  whereby  Mason  was 
forced  to  throw  him  off*,  and  that  he  fell  against 
a  stool.  2do,  That  the  wotmd  was  not  mortal^ 
but  Ralston  died  ex  maloregimine.  3tio.  1'hat 
the  homicide  was  merely  casual,  and  io  self- 
defence,  RaNton  being  the  aggressor.  The 
lords  sustained  the  litiel  only  rete\ant  to  infer 
the  panam  extraordinariam^  and  separately 
sustained  the  other  defences  to  assoilzie  in  tO" 
iuntf  and  remitted  all  to  the  knowledge  of  tbs 
innuest.  Here  your  lordships  sec,  the  killing 
only  sustained  ad  panam  extruordinariam^  with- 
out regard  to  the  three  deft: noes  of  casual  ho- 
micide, self-defence,  and  dying  ex  malo  regi'^ 
mine  ;  for  they  are  all  sustained  separately  to 
assoilzie,  even  from  the  pana  extraordinaria  : 
here  then  was  a  culpable  homicide,  sustained 
only  ad  panam  cxtraordinariam^  though  neither 
merely  casual,  nor  in  self- defence ;  and  so  thera 
can  be  no  judgment  more  direct  upon  the  point 
now  pled. 

And  here  the  pannel  must  notice,  once  for 
all,  that  it  makes  nothing  to  this  question,  that 
iu  that,  and  other  like  cases  to  be  mentioned, 
a  mortal  weapon  was  not  used ;  for  it  is  one 
question,  what  is  sufficient  to  make  a  liomicidt 
only  culpable  P  And  quite  another,  whether,  ii| 
our  law,  there  is  such  a  thing  as  culpable  ho- 
micide, though  neither  merely  casual,  nor  iu 
self-ddence  P  That  of  the  using  a  deadly  wea^ 
|>on  enters  into  the  argument,  whether  a  homi- 
cide is  dolose  or  culpable  only  ?  But  it  makes 
nothing  to  the  other  question,  since  homicide 
may  not  be  merely  casual,  although  no  mortal 
weapon  is  used,  as  appears  both  from  this  de- 
cision, and  the  case  of  Bain,  cited  for  the  pur- 
suers. 

Another  case  is  that  of  Cricrson  and  others, 
12th  March,  168 1 ;  where  the  paunels  being 
accused  of  murder,  for  killing  the  defunct  in  a 
scuffle  ;  the  defence  proponed  was,  that  the  de- 
funct was  the  first  aggressor,  and  did  invade 
the  pannels,  or  one  or  otiier  of  them  ;  and  that 
William  Crierson,  or  one  or  other  of  thera,  be- 
ing standinuf  hefore  the  fire,  the  defunct  threw 
the  said  William,  or  one  or  other  of  them,  iu 
the  fire,  and  fell  upon  him  himself;  and  then, 
after  the  scuffle  was  over,  the  defunct  did  rij^e, 
walked  up  and  down,  discoursed,  and  of  new 
aga>n  heat  the  said  William  (srierson,  and 
threatened  to  kill  him  if  he  would  not  be  gone; 
that  the  defunct  went  in  goo.l  health  to  the 
door  thereafter.  These  the  lords  sustained  re- 
levant to  liberate  from  the  ordinary  pain  of 
death.  Here  is  another  decision  in  point ;  the 
crime  was  not  found  merely  casual,  or  the  ('ourt 
must  have  assoilzied  ;  at  least,  could  only  have 
imprisoned,  and  could  have  iiillicted  no  other 
arbitrary  punishin.  iit.  But  that  was  not  the 
case,  it' was  Ibund  culjiable,  and  not  merely 
casual ;  and  therefore  the  punisiiment  rcbtriei- 
ed.  Sure  then  it  is  not  true  in  law,  that  all  ho- 
micides arc  cajiilal,  un1e»>s  the}-  be  merely  ca- 
sual. 

A  third  case,  is  thi^t  of  3Iaxwell  and  otiiar- 


131] 


2  GEORGE  IL 


ftlaui^hter;  for  the  peace  is  broken  by  the 
penton  killed,  and  with  aR  iudignity  to  him 
that  received  the  assault :  besides,  he  that  was 
so  aflTi-onted  miffht  reasonably  apprehend,  that 
he  that  treated  nim  in  that  uianner  might  have 
some  further  design  upon  him/'  Your  lord- 
ships see  how  close  this  is  to  the  case:  the 
insult  ^nd  indignity  done  by  Bridgetou  was 
?ast1v  stronger  than  any  thing  here  mentioned, 
and  having  received  such  an  affront,  the  panuel 
had  reason  to  expect  worse ;  more  especially 
when,  as  we  offered  to  .prove,  Bridgeton  was 
endeavouring  to  pull  out  my  lord  Strathmore's 
sword. 

We  must  likewise  humbly  ref^r  to  several 
cases  set  down  by  serjeaut  Hawkins,  in  his 
Pleas  of  the  Crown,  which  fully  agree  with 
what  we  now  plead ;    and  particularly  take 
notice  of  what  he  says,  pag.  84.    "  If  a  third 
person   hap|>en,    accidentally    happen,  to  be 
killed  by  one.  engaged  in  a  combat  with  ano- 
ther, upon  a  sudden  quarrel,  it  seeiqs  that  he 
^ho  kills  him  is  guilty  of  manslaughter  only." 
And  it  would  seem  that  there  is  even  a  diffe- 
rence made,  betwixt  killing  a  person  that  en- 
deavours to  interpose,  if  he  tell  that  be  comes 
for  that  purpose,  and  killing  one  who  acci- 
dentally is  interposed  betwixt  the  two  contend- 
ing parties;  which  was  my  lord  Stratlimore's 
case.    The  killing  him  who  interposes  to  se- 
parate, if  he  give  notice  what  he  is  doing,  is 
reckoned  worse  than   the  killing  the  other. 
And  this  obsjervation  shews  that  the  present 
case  is  stronger  than  the  above-cited  case  of 
Graham,  where  your  lordships  restricted  it  to 
an  arbitrary  punishment.    And  what  that  au- 
thor observes,  confirms  a  distinction  we  have 
made,  betwixt  a  man  quarrelling  with  another, 
and  killing  a  third  party,  where  it'  is  proved 
the  killer  had  a  felonious  intention  to  marder 
the  other,  and  the  case  where  that  does  not 
appear;    for  however,  in  the  first  case,    he 
might  be  guilty  of  the  murder  of  the  third 
party,  yet  if  a  design  to  murder  the  person  he 
quarrelled  with  is  not  proved,  then  he  can  never 
suffer  capitally  fur  killing  the  third  party :  and 
we  have  already  endeavoured  to  prove,  that 
that  must  be  the  case  as  to  Bridgeton,  where 
he  ga\e  the  provocation,  and  no  act  followed 
againsi  him  sufficient  in  law   to  establish  a 
desi^  of  murdering  him. 

The  pursuers  have  cited  the  same  books, 
and  Mawgridge's  Case,  as  for  them  ;  but  that 
we  submit.  The  particular  cases  of  Hollo  way, 
and  Williams  the  Welchraan,  spoke  of  by 
Keyling,  are  not  at  all  to  the  purpose :  the 
Weli-hman's  case  was  no  judgment;  but  nei- 
ther in  that  nor  in  Holloway's  was  there  any 
reul  |)ersonal  injury,  on  which  a  great  stress  is 
laid  in  all  these  questions. 

The  pursuers  mention  another  case  stated, 
but  never  adjudged;  a  person  shooting  at 
fowls  with  an  inteut  to  steal  them,  accidentally 
kills  a  man ;  that  will  be  murder.  This  per- 
haps may  be  justly  doubled.  Sure  it  wouM 
be  too  severe.  But  supposing  it  were  so,  it 
iiof  M  lioportmot:  tttaliBg,  treo  of  fbwliy 


Trial  of  James  Caruegie^ 

by  the  law  of  England,  is  felony  of 
prepense ;  and  where  a  roan  attemp 
commit  one  felony,  does  another,  there 
doubt  but  in  strict  law  he  is  guilty  of  the 
committed.*  But  what  is  that  to  the  a 
provocation  by  a  real  injury  ? 

The  pursuers  have  quoted  the  auth< 
V<iet,  and  a  decision  observed  by  bin 
Sande,  to  prove,  that  where  one  man  i 
tended  to  be  killed,  and  another  sla! 
crime  is  capital :  in  which,  no  doub 
differs  from  many  as  learned  lawyers,  i 
of  the  other  side.  But  his  opinion,  a 
of  Sande,  is  obviated  by  what  is  ahead 
it  is  only  in  the  case  of  no  provocation 
injury  on  the  part  of  him  who  was  desi 
be  killed.  And  Sdo,  It  is  always  ta 
granted  by  Voet,  and  all  who  are  of  tl 
nion,  that  the  design  of  murderins^  the 
intended  to  be  inviuled,  do  appear  and  is 
but  we  have  already  shewn,  that  cannot 
in  the  present  case. 

The  pursuers  pretended,  that  then 
circumstance  in  the  libel  which  implied 
against  the  earl  of  Strathmore,  viz. 
the  thrust  given  was  followed  by  a 
push."  But  as  there  is  nothing  in  this 
may  be  the  subject  of  imagination,  1 
never  be  the  subject  of  proof,  unless 
pretended,  as  it  is  not,  that  the  uanut 
back  or  out  his  sword,  and  made  a 
thrust ;  which  will  appear  not  to  be  tri 
the  nature  of  the  wound ;  and  the  thr 
be  found  to  have  been  so  momentary, 
was  impossible.  Sdo,  Jf  any  thing  11 
happened,  it  will  appear,  tfiat  there 
more  in  it,  but  the  pannel's  staggei 
moving  the  sword,  by  his  weight  Icanin 
it.  Stio,  There  is  no  relevaucy  in  it 
the  fact  being,  that  the  pannel  push* 
Bridgeton  :  and  no  circumstance  will  i 
appear,  that  he  knew  he  had  touched  i 
of  Strathmore  till  some  time  after  the 
was  perfected. 

The  pursuers  further  pretended,  "  ' 
they  had  libelled  malice,  they  would 
from  other  antecedent  facts  that  had  hi 
some  time  before,  whereby  it  would 
that  there  was  enmity  betwixt  the  deft 
the  pannel." 

It  is  answered  for  the  pannel,  Imo, 
such  facts  being  libelled,  nor,  to  this 
condescended  upon,  cither  in  the  deba 
formation,  they  can  by  no  means  er 

*  At  the  Lent  assizes  at  Chelm 
Essex,  1763,  two  sailors  were  convi 
the  murder  of  a  farmer :  the  case  v 
sailors  came  to  steal  the  farmer's  foi 
farmer  with  his  son  pur^iued  them  ;  on 
sailors  struck  the  farmer  several  blowi 
arm,  which  (though  not  likely)  kill 
This  was  held  to  be  murder ;  tit*cause 
they  were  about  was  unlawful ;  but  thi 
after  several  respites  from  execution, 
his  majesty's  most  gracious  pardon. 
Edition. 


2  GEORGE  II. 


ISfiJ 

CuuA  JuRicuBu,  S.  D.  N.  KcnK  tenU  in 
novoSeHioiiudanMBargi  de  Kdiobui^b, 
wcuDda  die  tncnaw  Augurti,  muUmjoio 
MptiDgoiteaimo  Tigninw  octavo,  per 
boDorabile*  finM  Aduunm  Cockburvs  d« 
OrmiUoun,  Jwticitriuni  Clericum;  Do- 
tuiniim  Gulielmani  C&lderwiwd  de  Pol- 
'  tnim;  H»([i(trilm  DiviJein  Erikine  de 
Dud,  Dominum  Giitlunim  l:>riDKle  de 
Nrwhall,  et  lUigiMraD)  Aodream  FTBteher 
de  Blilloun,  CarainiaiiouriM  Jiulidvic 
dicL  8.  D.  N.  Regia. 

Cuiu  kgitime  affirmata. 

JiMKt  Cam«jt«,of  ElDbiven,  pannd. 


Tbe  Lordi  proceeded  lo  make  choice  of  the 
ftUowiog  Anizen : 


Sir  Robert  DickBMi,  of  loTenak. 
Geonce  Loch,  of  Drylav. 

*Jotin  Wiiioa  of  Slumja. 
'  Watt.  Riddel,  of  GraDton. 
Geor|re  Warrender,  of  Burntafteld. 
Tho.  BioKOfOf  Bonin({Uin. 
•Geoive  Haliburlon,  of  Fordel. 
Jtmrt  Bftlfour,  of  Pilrig-. 
Robrrt  Duodat,  merchaat,  in  Ediabnrgfa. 
Darid  Inglis,  aier^aiit,  there. 
David  Burd,  mercbaot,  Uiere. 
Alex.  Blackwood,  raerchaol,  there. 
,   'John  Couls,  mercheni,  there. 
Julia  Slereo,  merchaat,  there. 
James  Iter,  ^IJsmitli,  there. 


The  aboTe  asaize  beini;  all  lawfully  ■worn, 
•od  no  lanfiil  objectiau  in  the  cootrary,  tbe 
punueis  for  prabatioa  adduced  tbe  wiioccin 
■Iter  de[ii>niD<:,  vii. 

Riitrt  Hipburn-c,  hammennau,  in  Forfar, 
flolenm'y  tw^rn,  ixirfreil,  cximiacd  and  inter- 
rugate,  de|ioneu,  Tuat  lie  vat  io  tbe  lii.in  of 
Vorfar,  the  9:\i  ilay  of  Aluy  last,  betwiiLt  the 
hours  of  i'ii{ht  and  cine  o'clock  at  nigbt,  where 
be  ilid  liee  the  decvaaed  earl  of  Strathinore,  loril 
Roifrhitt,  aod  Mr.  TLoniai  Lyoa  my  lord 
Siratbmore's  brolher,  nalkiofr  ia  tbe  tlreeti; 
and  al  thf  amu  lime  did  see  Lyon  «f  Bcidge- 
lOD,  and  Fiabnreo  the  paimel,  Elandiuii  uear  lo 
the  lady  Auchiahoaic  her  houic,  upon  the 
alrecl;  what  words  pa-sed  betwit^t  then),  Le 
being- si  a  ilisuucu  could  not  hear;  iiw  firidge- 
* —    ---  e  Fiuliaven  a  |iii£h  with  hit  band;    and 


Triat  ofjamet  Carnegk, 

oot  know  irbelber  be  got  it  drawn 
law  Fin  haven  draw  bif  iword  befor 
offered  to  drai*  my  Ion)  8tialhni 
when  Bridgeton  wa>  coming  upfTo 
where  FinhoTen  fell,  he  lookei 
ihonkler,  and  seeing  Flnharrn  wil 
drawn,  be  went  fatter  up  to  my 
more,  aiiaid  is  ;  and  when  Finbati 
my  lord  Strathmore  being  standing 
of  butts  from  the  place  where  Fii 
ud  when  Bndgeton  came  op,  and  i 
to  draw  my  lord  Strath  more' i  hw 
LI,  my  lord  turned  bim  about,  and 
Ion  aaide,  and  made  tome  tte^S  to 
haTcn,  who  would  be  at  that  (irae 
eight  ells  from  my  lord;  and  he 
lord  endeavour  to  take  Fiuhaven 
when  they  roet,  and  in  a  little  all 
he  did  tee  my  lord  withdraw  himse 
the  rest  of  the  company,  and  sa 
down  his  breeches,  and  (ifl  up  hii 
heard  him  say  be  had  got  a  woui 
pealed  llieie  words  three  titoes,  ai 
pat  op  hia  shirt,  ond  in  a  sliorl  tin 
taw  Riy  lord  fall  lo  the  ffrouiid.  A< 
lerrogale,  ifbe  taw  Finlia*en  the  f 
a  thrust  at  niy  lord  Slralhmurc  ivii 
Deponed,  he  did  not  tee  him  maki 
but  al  that  time  did  see  no  other  s 
but  Finhaven's ;  and  after  uiy  Ion 
taw  several  other  twords  drawn. 
That  there  was  no  other  compai 
with  my  lord  but  uiy  lord  Ro^el 
OHO  brother  Mr.  Thomas,  bcfure  lb: 
and  Finliareu  eame  up :  AoA  tliai 
this  that  be  has  deponed  U[H)D,  fr 
abop-door,  which  was  about  teveii  i 
dikiance  from  that  port  of  tlic  si 
my  lord  Siraibmore  wa*  standin";. 
ioierro^Ie,  if  he  knowt  n  hat  cam 
ton,  after  he  came  up  to  my  lord  \ 
That  he  knew  not  wliat  bccume  a 
ader  my  lord  put  him  aside :  \i 
wat  at  much  day-light  s«  he  could 
has  deponed  upon :  And  that  F 
naanel  wo*  in  boutt ;  aud  Ihal  he 
fast  up  after  Bridgelon,  but  Brii 
flitter  lotiards  my  lord ;  and  thai  v 
Strathmore  felt,  he  saw  Thomiu  . 
man,  lake  up  my  lord  from  the  i 
saw  no  other  body  assisting.  ] 
taw  the  piinnel't  sword  tttisled  oul 
bv  Sir.  Thomas,  or  my  lord  Ri 
which  of  I  hem,  he  koon's  not; 
was  after  my  lord  fell.  And  depoi 
.  did  see  the  »ound  in  my  lopj't  b 
I  below  the  navel;  and  that  it  iv 
Deponed,  Tlial  he  taw  Finhavc 
iword  wat  twitted  out  of  hit  band 


Fiabaveii  fell  in  tbe  Ktiiler ;  and  be  taw  a 
▼ant  of  the  ilcceucd  earl  of  Strathmore  help 
Finhaven  up  out  of  the  (^Herj    awd  when 


JeTy;   but  that  Bridgctoo  comii^f  up 

ftaler  ikaa  Finhaven,  he  taw  Bridgetun  offer 
••4M>BjlotdbinibBan'iiwatdi  bMdw 


And  thia  ia  tbe  tratk  •*  he  ihoul 

U«d.  noBLrr  I 

Ad.  Coci 

Xal*,  Thtynemttta  for  the  p 
Oaefsn  pwgtDg)  olgcctad  to  ^  i 


\Si}     finieiiimltrB/lheEarlqfStratlaion.         A.  D.  17«S. 


[13S 


^M  HrftaM,  why  he  oi^ht  out  to  be  k  I  Bridsetoo  riUiliDg  tM[elb«r  near  Is  the  Mj 
■■Miitbiieue-,  beciuM,  •ince  hit  citation    Aui'literhonu  berbdginf;    and  mi  ontherc- 


ke  km  left  to  ibe  cuiwilenlwu  of 


•IWllclbBkedGiid^he  had  now  an  opuor- 

aM  ku|  bin,  and  would  dO  it  if  bo 
'  U  tMog  iheae  cxptMHOo*  were 
Mf  (HNS  igaiiiit  him,  by  two  coQcurring 
vHMkia  MeoM  of  the  court  and  jury, 
taABN^lM  aune  niKht  be  lo  luarkM  in 
iiWi(f  aOMtmal.    Whicli,  and  iliii  de- 

t."' 

laif  hrd  RiatkiU,  Bo)«nnly  aworD,  pDrt^ed, 
hWhJ  inlerroirate,  depooH,  (beinrin- 
■Wnh-  the  paonel)  That  the  time  libeled, 
fcfamU  «n  tltK  Kccnioo  of  ■  borying,  wai 
iMliieMnpaay  with  the  decnsol  carl  of 
HMir,  the  pnonpl,  and  olb?r«  ;  and  loge- 
■iifdiwd  in  Mr.  Cirncfrii!  nf  Loun*a 
Ip^  mt  after  dioDcr  and  the  burying  was 
"^rj  Iweiher  w*ot  to  the  haiue  of  Mr, 
l,titA  ofPor^,  where  t)iejr  conttDUfd 
(MMdenble  lime,  drinking  a  gUw  of 
and  after  tfiej  letl  that  hooK, 
in  the  hooae  of  my  lady  Aocb- 
in  the  same  low 0,  the  panncFi  Bitter, 
I  deceased  Eari  had  g«De  to  make  a 
k  Dffwneil,  That  during  all  (bat  day.  and 
Itwreral  nlicei  where  tlic  deceannl  Eari, 
iMad,  and  tbe  reat  of  the  company  were, 
jitdrponent,  ohaFrred  nothing  but  grent 
inaadfrimdahip  betwixt  the  deceaaed  Earl 
lit  iianiiel.  Deponed,  That  before  Ihey 
nam  the  lady  Auchterbouie'a,  the 
la|ipeared  lo  iIig  df|inDeDt  tu  be  drunk, 
I  br   gune    in    drink,   to  tbe    degree  of 

tiirii;;  and  he  ubs  erred  the  pa  unci 
plrutifully  ill  thc&e  several  houcea.  De- 
ll. That  he  the  di'poucni,  during  the  time 
bbrin^with  the  said  compaov,  wanmoatlv 
Htd  ID  con  venial  ion  with  the  ileceiMd  Earl, 
■  bd    not    the  occakinn  to    oLierre   vvliat 

Biri  in  convcrSBliuu  bctwJNt  the  poiincl  aud 
Lyno  of  IJridt^tun  :  iinil  beiug  interrogate 
■  ahat  be  knew  of  ilie  char.ieler  and 
^a  of  the  pauoul  ?  Deiwned,  That,  ac- 
Meg  to  ilto  ilrpaurnt'it  kuowlcdgo  of  him, 
U  bail  bi'i'ii  of  Uing  cnntin nance,  aud  |>ar- 
iag  to  tlie  characler  Im  the 

RMdWein  the  country,  be  waa  thought 
taaite  ftiarrelmnie  in  lii^  temper,  but  lo  be 
ll  peacriitilc  and  t;n<id  dispomtiou.     Causa 
tMtipultt.    And  ilii«  na»tlie  Iruih  as  I 
nld  unvrt  lo  God.  Rosehill. 

D.  EasKiNG. 

ViUiaai   Dmi;lai,  lawful    aon    to  William 

^(lu,  )a1e  proTOft  nod  chirurgeon-apolhe- 

4n  Forfar,  solemnly  utrnrn,  purged,  en- 

M,  and  intarroifite  tor  the  pursuen,  De- 

^d.  That  on  that  day  wher^un  the  deceait 

if  litnthmore  wan  woumled,  he  the  dppo- 

*aa  at  Forfar,  and  on  the  itreels,  wlicrt 

4  tee  ibe  Earl  with  my  lord  llmchill  and 

n. Lyon  bi«  brother,  and  at  the  aaiiiE 


aAer  lookinir  about,  ba  obeerred  FinbuTm 
leaning  and  falling  backwardi  into  a  keonel  i 
-~  I  alter  getting  oitt  of  it,  which  he  anppared 
the  deponent  to  do  very  ioon,  he  drew  Ilia 
award,  and  with  it  went  up  to  the  oonpany 
where  the  Earl,  Bridgeton,  and  the  real  were  i 
and  at  tbe  flnt  aight,  upnn  the  patutel'a  m> 
proachiog  to  ilie  Earl,  Bridgeton  and  Ik 
reft,  Bridgeton  was  then  inlerposed  bclwist 
the  Earl  and  the  pannel ;  but  all  of  a  auiMea 
and  a  clap,  the  Earl  came  to  be  interpovad 
betwikt  Bridgeton  and  the  punuel  ;  and  i|t  lli* 
time  iif  the  aaid  Earl's  in terpnaiiion,  tliepaond 
was  within  the  length  of  bin  anord  at  the  plac« 
where  Bridgeton  was  atanding ',  that  ii  to  lay, 
had  been  atanding.  Deponed,  That  he  did  o»> 
aerre  tbe  pannet  make  a  thrust  with  hii  aword, 
and  at  the  time  of  to  duing,  the  Earl  wai  ataod- 
iug  next  tbe  paonel,  and  hit  face  lowarda  bin. 
Deponed,  That  the  Ear)  teceired  a  wouod  in 
hit  belly,  and  aJUr  receir iug  it,  heaaw  him  poll 
hii  ahirt  from  under  bi«  breecbet,  aud  at  thn 
same  lime  taw  him  blooding,  and  toon  tbere- 
after  hit  lordship  tell  down,  anil  be  heard 
him  say,  that  he  hail  got  it ;  and  before  th* 
Earl  fell,  and  while  he  waa  upon  the  ground, 
he  did  otwerre  his  brother  Mr.  Thoma*,  with 
hi«  drawn  swori),  twist  Finhateo'i  tnord  oot 
of  his  band,  after  seeing  and  hearing  aoDM 
clashing  of  tlieir  swordt :  but  tt  the  time  when 
Finliaven  made  tbe  piuh,a*  taidis,heabserTcd 
no  other  aword  drawn  but  Fiiibareo'i ;  and  at 
the  time  when  thepinocl  recorered  liislhrilil, 
the  pannel  aod  the  Earl  were  vrry  near  aneaiH>< 
ther :  and  all  this  time,  the  dejiooeDt  waa 
about  the  length  of  this  room,  or  tome  more, 
distant  from  the  said  Uarl  aod  the  pannel, 
whose  aides  were  oppmite  to  the  deponent;  nod 
aRcr  the  earl  uf  Strathmnra's  I'all,  and  that  liit 
bnither  Mr.  Tliomas  twilled  the  sirord  out  of 
the  pannel's  hand,  the  iiauDtl,  who  waa  in 
lioots,  ran  towards  bis  si»tf  i  's  dnnr :  uftcr  the 
deceived  Euil  was  carried  Ut  a  house,  and  bia 
wuuoil  WHS  driDl,  he  heard  his  lontship  say, 
th^tuHer  the  sword  eniNcil  hit  helly,  he  tho 
pannel  gave  it  a  second  thrust.  Dejuined,  That 
when  he  observed  Finharen  liiiliug  into  tho 
piHldle,  at  ahnvehuiil,  there  was  none  stauding 
with  biinor  by  liim  NutMr,  LyouorBHilgeton, 
And  wlint  he  lias  above  ilepoucd,  hsppened  on 
ibcQibday  of  May  last,  alwiit  the  hour  of  nine 
id  niglit.  CuM(t  i;ci«ari.r^<ifef.  And  this  hm 
truth  as  he  should  answer  lo  <iud. 

^ViLL.  nouci.a*. 
1>A.  Erskine. 

AndrtK  Douglai,  alto  lawful  son  to  the  aaid 
William  Douglas, iiultmn1y8iTurn,pui\:ed,exa- 
miiii'd  and Inti^rrogate,  Uipo'iPil.'l'hat  the  lim* 
Mid  p lure  libelled,  thedi'|>ciiii-[ii  taw  JoboLyon 
ul  Uriil:;('ioD  push  the  |iBniie!  upon  tlie  breatl, 
whereby  the  puniicl  tell  ioihe  gulter.which  tbs 
deponent  ajiprehendril  would  have  taken  liim 
up  to  the  kui«i    that  it  Has  a  very  natty 


!■  nkiinrt  Finharcawd  Air.  Lyon  of    gutter;  and  that  lit  utr  tbe  punel  uiatoot 


1S9] 


?  GEORGE  II. 


7'rial  qfJamet  Cartiegie, 


«iriIieffiiUer,  ■«(!  immeiliately  drBwhiaiword,  | 
by  vbicli  lime  BridKeioti  tris  walking'  off 
towards  my  lord  Slralbmora  and  Dthen,  who 
were  ikiDdTng  u|ii)ii  the  atrecl  ftbnul  ttie  diMmce 
of  tiie  length  of  lhi«  Toom  fivm  the  forefaid  i 

? utter :  and  drponed,  That  be  fullowed  at\er  I 
inharen  immixtiBlely,  after  ataudintr  a  little  i 
while  with  bin  comrades;  and  llint  before  the 
tfeiMBeat  came  up  to  the  place  wbere  my  lord 
SUBthmoreaml  the  other  genllemni  were  stand- 
ing', my  lord  Stnthmore  h^id  tkllen  upon  the 
streeL  Am)  tbe  de)>onant  being  nslced,  how 
■oon  that  ba|^ned  f  De|>ODed,  That  it  was 
in  ■  moment ;  and  that  wbco  the  deponent 
«ame  up  as  atbresaid,  he  raw  Mr.  Thomaa  I.yon 
and  FiohaTcn  eoeaged,  and  making  panes  at 
each  other  with  their  rirairn  awotds ;  which  the 
deponent  explainol  to  be  odIv  a  clashing  with 
their  awords ;  and  that  Mr,  Thomas  Ijyon  did 
1  twist  the  sword  out  of  Finbaren'a 


C* 


pattt.    And  this  was  tlie  truth  as  he  abould 
snswei  In  Giid.  Anorew  Douaua. 

And.  Fletcueb. 

John  Fefricr,mideBter  ID  Forrar,  solemnly 
nrom,  purged,  examined  and  interrogate,  de- 


Ened,  That  at  the  time  and  place  hbeRed,  the 
pcnent  baTtnc  occasioD  to  go  to  water  bia 
master'!  horse,  ne  mw  Bridgetou  and  the  peU' 


Li  they  came  out  from  tbe  lady  Auctiter- 
nouse's  tod^ng,  about  the  briilee^une  near 
the  shambles,  and  there  heard  Bridgeton  say 
to  the  jiaunel.  You  mnst  gi*e  me  an  answer  to 
my  queaiion,  which  tlieileponent  beard  was.  If 
the  pannel  would  give  his  iJaugliter  to  the  lord 
Rowhill?  And  upon  the  psnuel'a  saying.  Ho ; 
Briil^ton  asked  nim,  If  he  would  drink  a  bot' 
tie  ot  wine,  and  if  he  would  drink  the  king's 
health  ?  And  u]Kin  the  panuel'a  refusing  to  do 
either,  the  deponent  saw  Bridgeton  take  hold  cf 
the  pannel  by  tlie  breast,  and  Tioleotly  push  him 
into  the  kennel;  and  heard  Bridgeton  at  the  same 
lime,  saj.  Go,  and  In  damned,  and  your  king 
George,  whom  you  love  so  well.  And  thereatter 
Bridtieton  walked  towards  mv  lord  Brrallmiore, 
Hr.  Thomas  LyoD, and  my  lonl  llotebill,  who 
were  standing  upon  the  street  at  aonie  little 
distance ;  and  that  Finhsren  was  helprd  out  of 
the  gutter  by  a  footman  of  my  lord  Stratb- 
toore's:  and  that  upon  the  pannel's  getting 
unon  the  streets  again,  he  immediately  drew 
his  sword,  and  ran  up  the  street  afler  Bridge- 
ton  ;  and  before  Bridgeton  had  come  the  length 
of  the  place  where  the  lord  Stratiimore  and 
otiiers  were  standing,  he  looked  over  his  shoul- 
der, and  seeing  FiribaTeii  following  him  in 
manner  abore  mentioned,  be  run  up  to  my  lord 
Strathmore,  who,  and  the  rest  of  the  company, 
had  still  their  backs  tiimeil  to  the  place  from 
whence  Fiohaf  en  and  Bridgeton  were  coming : 
•nd  that  Bridgeton,  upon  his  coming  up  to 
6tralhmoTe,laid  hold  upon  my  ktid  Siralhronre's 
•word,  and  eadeafoiired  lo  pull  it  onl ;  upon 
wUeh  my  lord  Sintliiiiore  latniug  aboul  pushed 


Bridgeton  off,  and  in  tbe  mean  time  FlohaTa 
made  a  pnsh  with  his  swoni  at  Brii%pton,  aw 
at  that  instant  he  obaerred  my  lord  ^atbmon 
pnshing  Bridgeton  aside,  and  make  a  step  to 
wards  Finha*en  ;  and  obserred  at  aame  IIm 
Finhaven,  going  on  with  his  piMh,  to  Msgm 
liirwarO  with  the  thrust  upon  my  lord  HtrSm 
more ;  and  thereafter  thu  company  west  a] 
through  other,  sn  that  the  deponent  could  iM 
see  where  the  thrust  landed  :  and  »ery  sooi 
thereafter  the  deponent  saw  Mr.  Thomas  I^ol 
with  bis  sword  ra'  Finharen's  sword  out  of  U 
hand,  which  lighted  at  a  good  distance  upa 
the  street:  u|)On  which  FinbaTcn  runoff,  Mif 
gering,  towards  the  lady  Auclilerbouse's  ittf- 
iug,  and  bad  almost  fallen  upon  the  atreel  |^ 
lbr«  hegot  inattiiegate  ;  and  much  abontthl 
aame  time  the  deponent  aaw  the  earl  of  Stntb< 
more  fall  down  uiion  the  street,  and  al\erinidi 
carried  off,  and  that  Thomas  Adam  and  JuM 
Binnie  wet«  (ho  first  that  came  to  his  assirt 
ance.  Deponed,  That  the  kenoet  was  dasf 
and  dirty,  and  that  the  panuel  itas  deep  in  i^ 
but  not  treely  covered  :  that  when  he»Tosa,Kl 
face  wBsalmost  as  Uack  as  his  black  coat ;  ui 
that  while  tbes*  things  past,  the  deponent  wM 
riding  upon  the  side  of  the  street,  betwixt  Ikl 
gutter  and  the  place  where  the  earl  of  Stralb< 
more  and  othera  were  standing ;  and  upon  sM> 
ing  the  b^iuuiog  of  this  accident,  he  stoppri 
his  horses  little,  till  ha  saw  naalmve-menliuDci 
Couio  scientiie  palet.  And  this  was  the  truth  M 
he  should  answer  to  God.  John  FEiiaitR. 
And.  Fleti^ueb. 
David  Barclay,  lawful  son  to  Dntid  Bardif) 
brewer  in  Forfar,  solemnly  sworn,  purged,  ^ 
amincd  and  interrogate.  Deponed,  That  attbl 
time  and  place  libelled  he  saw  Bridgeton  put! 
the  pannel  into  a  gutter,  oud  saw  a  serraal 
raise  bim  outof  the  gutter  :  and  when  ihn  pal- 
nrlgotlo  the  street,  he  saw  him  draw  his  sword, 
and  go  towards  the  rest  of  lljc  company,  an4 
Bridgeton  was  beyond  the  earl  of  Stmthmor^ 
his  brother  and  lord  Rosehill,  who  were  inter- 
lerpoBed  belwiiLt  llie  jiannel  anit  BridgeUa, 
and  did  not  see  the  panne]  push  with  llM 
sword,  and  saw  a  little  after  my  lord  Strait 
more  fall  upon  the  street ;  aod  immedialdj 
;  aller  that  saw  Mr.  Thomas  Lyon,  with  I 
j  naked  aword,  beat  the  psnnel's  sword  out  el 
his  hand,  and  the  psunel  immediately  nil 
toward  the  lady  Auchlerliouse's  house,  ad 
got  in  at  the  dour.  And  deponed.  That  wbcl 
Bridgeton  thrust  the  pannel  into  the  gutter,  iIm 
servant  who  lillud  him  up,  aaid  to  Brid|;eton,  n 
some  other  serrant  standing  by,  that  be  was  nn- 
civil,  though  lie  was  a  gentleman  :  and  iha' 
what  tbe  deponent  saw  ami  heard,  as  aforesaid 
was  betwixt  eight  and  nine  o'cloek  of  the  eveO' 
iug  of  the  day  tbresaid.  Canto  itienlitr  palet 
And  this  wa*  the  truth  as  he  should  answer  ll 
God.  Di^ia  BtocLnr. 

y/t,  Caldkkwood, 


Eluahtth  fimnte,  anoine  to  Andrew  Gray 
bazter  in  Dnwlae,  pelemnly  sworn,  pnrg<4 
(xiuuncd  ui  iBleirroyale,  daposvd,  Tfauilii 


W]        Jbrae  Murder  of  ihtEnrt  of  Strathmort.  A-D.  1788.  [M« 

tiD  uiile,  tad  my  lonl  Stntbmora  bmd  ulTanccd 
liifciliiHliii  a  pnib  to  the  panDfll,  wFicreby     n atep or hftlfa alep toward Fiohaven ;  and  tben 
kdia  ibc  gutter,  tnd  irairoiaad  out  of  it  by    tbey  went  all  id  kurowdtbroiigh  other,  and  b« 
ijkd  not  know  what  wa*  duiofc  amoDgtt  them, 
hit  did  H«  hU  mailer's  snord  ilruck  out  of  bw 


teiod  place  lifelled,  ihe  nvr  John  Lyon  of 
•  *  iM  five  a  pnib  to  the  panDfll,  whereby 
■  IM  gutter,  and  iraa  roiaed  out  of  it  by 
it  Iwi  flUsifafflore'i  wnaat ;  and  when  he 

Ctt  Ifec  ttrwi,  law  him  drav  bU  anorJ,  aod 
ikJB  Dttar  BD  oath,  but  did  DOl  know  what 
Atawkware:  and  then  the  deponent  turned 
kthdl,iad  did  not  ate  FiDha*eti  puih  with 
:   Ac  twmL    Catua  Ntmli«  pattt.    And  tliii 
I   TM  the  Inlh  aa  ahe  ahould  anawei  to  God  : 
'le  could  Dotwrile. 

W.  CtLDoatooo. 

a  JbrJt)p,  Mnaut  )o  Mr.  Robert  Nairn, 

'■fcraiaa  to Nairn  of  Drurokilbo, 

I  MaalT  *WOn>,  purged,  examined,  and  iuter- 
NMt^taoBed,  that  at  the  time  and  place  li- 
I  kb,  be  dU  aee  WiUiam  Mu^lish,  my  lord 
I  IMwK^  aeiTast,  take  FinbaTen  the  pannel 
!  arfdw  piUer,iTbeic  the  deponent  fawbim 

tl  ad  did  aee  FinhaTen  dr«w  hia  aword  after 
iBont:  aaddidbearoneoftheKentiemeD, 
■iii|in  tbe  place  where  my  lord  si  rath  more 
^Hmded,  call  out  to  Fin1iB*en,  Stand  off, 
#}Hda1illleBpaeetfaereaflerhesaw  the  dc- 
■Mdaait  of  Strathmoretakennp,  Coniii  ici- 
atgfaltt.  And  tilie  ia  tbe  truth  ai  bcBbouid 
MiB  IB  God ;  and  deponed  he  could  not 
wAn  W*.  Pmssle. 

Jma  Barrie,  lerranl  to  Jamea  Carnegie  of 
^ImB,  aolennly  sworn,  pui^;ed,  examined, 
M  istampte,  deponed,  That  at  klie  time  and 
|lMe  kkeUed,  the  depnnent  «(m  hoUling  hia 
■Mar'a  borara  upon  ihc  slrrrls  of  Fcrfar,  ntar 
kihekdj  Anrhierbousit's  tud^ng:  tliat  he 
Wacea  weaaid  earl  ofStratbiuore,  and  other 
cajaD]'  witli  him,  ki  aluiiir  ilte  Klrcet  froiii 
<fecuai  iDdgioir,  knil  Ijis  niiutcrand  llrjitfjclua 
IJkfii  It  a  little  distnucc  ;  beard  tbcin  coii- 
■wnaf  together,  and  iboiiKiit  tliat  Itrid^eliOi 
MiiiJ  ■imjI.c  angry  at  Wii  ma«lcr,  a.tid  dv- 
■•Miliat  he  ahiiuld  give  him  au  answer; 
Hmn  will  liear  what  liiv  iiinklcr  said,  c.TcepI 
Am  wwdi.  That  be  inteiidnl  lo  be  of  ihat  re- 
alitioo  ttill :  whcrriijion  Ktidgcioo  with  his 
tn  hand*,  puiheil  his  mnslcr  into  the  giiUt.'r, 
i>  ibc  nme  lime  exprL-ntng  himself.  Go  liv 
hma'i,  and  lt(  thai  man  take  liitii  up  tor  whom 
kehadu  great  a  farimr.  And  (he  dqwiii-iit 
■Mg  hit  iDMter  lytntr  in  the  gutler,  quit  liii 
Wk*,  and  came  li)  relici*  him,  but  luund  tlint 
■j  k(J  Ijtrathmorc's  scrranl  had  lidpcd  liiin 
MnWfure  he  cjmc.and  then  be  did  sec  his 
■Wtr  draw  Km  anord,  and  go  nrrlly  fast  fur- 
inl.  flaggcring,  and  Esying,  riiis  cannot  bb 
Mend;  ibcii  hiimaoteruimeup  tulhecom- 

Cj.  and  saw  bim  make  a  puili  at  I)riil[;eton ', 
tLar  klurr  hi«  muter  came  u]i  to  llicm,  he 
M  we  Brldtri'*'!"  malic  an  allcmpt  tn  draw  my 
hrilkiathiDorc's  iirord ;  und  as  Ilridgcton  tvad 
9t^  lowatti  ni_*  lord  .Siraihmore,  be  did  six 
Mjelnn  louk  "Tcr  hitiibnulilcr  lo  Finliafcn, 
MLnklatitbe  had  hecnlautjhinK.  OWrnd, 
hi  vIwd  his  master  madi'  tlie  pu^li,  nii  iH't^ire- 
kaaiucd,  be  Mcmcd  a*  if  lie  had  beun  filling, 
■(■w  bim  cloae  upon  lord  Stralbm<>ie;  bui 
Uh  lliii^  my  iapl  ittialhuiore  kud  put  lliiJ^- 


band  by  another  swoid,  and  then  did  aee  hia 
— 'nr  go  down  ta  hii  aister'a  lodging.  De- 
yoned,  that  aj  hia  master  was  thrown  upon  the 
back  iu  tbe  gutter,  and  was  covered  near  oref 
the  belly,  and  saw  hia  face  all  bespattered  witk 
Jirt,  and  aaw  the  mire  run  out  of  fail  boot- tops 
uabe  went  up  theslreet ;  and  deponed  hii  mas- 
ter at  that  time  was  very  drunk.  Being  inter- 
rogate further,  deponed, Tliat  hehasfreiioently 
feet)  his  master  drink,  and  propose  the  deceaaed 
earl  ofStralbmore's  health  at  his  table,  and  ihia 
A  short  time  before  tbe  unlacky  accident  liap- 
pene«I.  Deponed,  that  about  a  manlh  before, 
the  [ate  earl  and  hia  master  was  tocher  at 
Bnmside't  burial,  and  heard  the  Earl  iDvite  his 
inasIertohiBiiouBe,Bnd  beard  bim  aniwer, That 
lie  intended  ihot  very  soon.  Deponed,  that  bis 
master  rode  with  pistols  that  day,  but  deponed 
there  was  not  so  much  as  a  stone  in  tbem* 
Deponed,  that  ai^tit  or  ten  days  before  tbie  un- 
tnctcy  accident,  his  master  bid  the  deponent  g* 
m  the  taylor,  and  get  his  clothes  ready,  for  be 
intended  aa  soon  aa  he  got  bia  chaiaa  borne,  to 
go  with  his  lady  and  make  a  Tiail  to  my  lord 
tttratbmore  at  Glaromis.  Cavia  leienti*  patet. 
And  this  is  tbe  truth  at  lie  ahould  answer  t» 
Ood.  JiMEs  Buuua. 

W*.  Pbikols. 
Eluahth  Vilant,  lerraDl  to  Margaret  Car- 
D^c,  relict  of  tlie  deceost  Air.  Patrick  Lyon, 
of  AuchlerhouEe,  solemnly'  sworn,  purged,  exa- 
mintil  and  interrogate,  (le|H)iif  J,  Thai,  on  the 
<>ili  I.!'  Slay  last,  slie  did  sec  my  lord  Slrath- 
murc  Btid  t  iiihaven  in  (be  lady  Auclilerhouse'c 
lion^'e,  anil  did  see  nor  hear  iioihing  pasa  be- 
tween them  but  what  was  kind  and  civil ;  and 
slie  wa6  much  of  the  time  in  tlio  mom  before 
I)rid''eton  came  iu :  but  at\er  he  came  in,  abe 
M-ns  but  ciimiug  and  going;  and  when  mj 
U-Iy  railed  for  a  glitsitof  bruiidy,  Iho  de|)onent 
brou[;ht  it  in,  ami  luv  lady  set  it  by,  uid  saw 
nobody  drink  il,  and  I'hst  mv  lady  tuM  in  tbe 
cnmpBny,  That  Urid|(cton  liad  taki^n  her  by 
ivriat,  and  that  Khc  bnd  not  been  so  ill  usM 
ly  man,  and  complained  uf  pain.    And 

Ctiuia  irientia  pattt. 
she  shotild  answer  !• 


de[Kined,  that  that  allevi 


Al>.  CuCKDi;il!IE. 

Isaifl  Meik,  servant  to  the  before-named 
and  designee!  jtlnii^aret  Cnrnetlie,  anlcinnly 
sworn,  mirged.examiucd  and  inlerrogale,  de- 
poned, Tliat  in  thi!  evciiiui;  on  llie  9th  of  Miij 
last,  Finbavcn  came  up  lo  llie  lady  Auchlcr- 
bouse's  house,  ami  ibe  donr  being  shut  after 
bim,  she  came  ii|i  srtvr  into  tbe  said  hou*e  : 
and  she  turning  iiIhiuI  upon  sonic  |)<>u pic  knock' 
ingat  the  door,  and  opniin:;  the  B:ime,  there 
CBmc  in  tiro  nr  three  luthU'inen  or  (;eutlemrii 
«iili  drpwu  sHords ;   and  I'inbaTen  tieiug  Ibta 


147J             2  GEORGE  II.  Trial  of  James  Carnegie, 

till  tbeir  bodies  were  close  together.    Deponed,  but  she  said  n6,  for  it  did  appear  to  l 

That  Bridgeton  is  a  good  deal  taller  than  my  not  want  it,  fur  be  was  then  ?ery  dri 

lord  Strathmorewas:  and  that  my  lord  Stratli-  that  Bridgeton  took  her  the  deponeo 

more  wore  a  fair  wig,  and  Brid^eton  wore  a  wrist,  and  squeezed  it  bard,  and  said 

black  one  usually.     Causa  scientue  valet.  And  be  no  difficulty  to  break  it ;   and  di 

ibis  is  truth  as  he  shoald  answer  to  God.  same  time,  Bridgeton  took  Finharei 

Tug.  Cbichton.  arm,  and  struck  bis  band  down  to  ' 

And.  Fletcher.  and  said,  Will  ye  not  agree  to  gire  one 

T^     r  I    Twr  jj    i          L*-      ^rkj  daughters  to  Itosehill  ?   And  Bridsfeto 

Dr.  John  Wcddcrburn,  physicuin  m  Dundee.  ^^"^  ,f  ,,^  ^^  ^                     ^J-^,  j 

solemnly  sworn,  purcBd,  examined  and  mterro-  refuiedhimoneofhisdaughte;*,hewc 

gate,  depon^,  T^atTie  wsb  ca"ed  to  wait  on  ^-      ^j  ^^^  thatshooE  his  hand  < 

the  earl  of  Strathmore,  when  he  reoeired  the  a«*i  *i««rt«oj  .h^  i^.^...  l..^.,  ^^^  u^, 

wound  upon  the  9tb  of  Ma^  last;   and  the  de-  broUierrtn^q^ 

ppnent  saw  him  uert  morniiy  «riy  ;  w^^^^  And  this  Is  the  truth  as  she  si 

▼lewmg  the  wound,  it  appeared  to  the  depo-  ^^^^  ^^  ^^                Maroaret  Cai 

nent  to  have  been  given  by  a  three-cornered  '                *•>   r>/^^.rnrtB^ 

sword,  which  had  entered  about  three  inches  ^'^*  i^ocKBURN 

above  the  navel,  and  went  out  in  the  back  on  Dr.  John  Kinloch^  nhysician  in  Du 

tb^  left-side,  some  inches  from  the  back-bone,  lemnly  sworn,  purgeo,  examined  am 

and  about  two  inches  lower  than  where  it  had  ffate,  utftipra,aeponed,Tbatontbe9l 

entered ;  and  the  wound  was  to  the  deponent's  last,  after  Lours's  daughter's  burial, 

apprehension  mortal ;  and  accordingly  the  earl  nent  was  in  clerk  Dicluon's  house  in  1 

of  Strathmore  died  of  that  wound  upon  Saturday  a  room  with  the  pannel,  who  asked  t 

night,  about  two  davs  after  he  had  received  it ;  nent,  if  he  would  go  into  another  rooi 

and  the  deponent  thereafter  saw  the  defunct  the  earl  of  Strathmore  was,  to  see  his  I 

•pened,  whereby  it  appeared,  that  the  weapon  and  accordingly  they  went  into  the  ro€ 

had  passed  through  the  caul,  the  gut  colon,  and  the  Earl  was,  and  stayed  there  about 

the  plexus  mesentericus.    And  deponed,  that  and  drunk  several  bottles  of  wine  toget 

the  defunct  told  him,  that  he  bad  an  impres-  during  that  time  he  saw  nothing  bi 

sion,  that  the  person  who  gave  him  the  wound,  civilities  in  tlie  company,  without  the 

had,  by  applying  his  belly  to  the  pomel  of  the  pearanoe  of  quarrels.     Causa  scient 

tword,  posned  it  forwlird  upon  him.    Deponed,  And  this  is  the  truth  as  he  should  < 

thatBndgeton  is  of  a  mncn  taller  stature,  than  God.                                John  Kinl 

my  lord  Strathmore  if  as ;   and  that  my  lord  W.  Caldei 

^thmore    usually    wore   a  fair  wig,    and  David  Denune,  sadler,  in  Canoni 

Bridgeton  a  black  one.     Cania  scientuc  patet,  lemnly  sworn,  purged,  examined  am 

And  this  is  the  truth  as  he  should  answer  to  jjate,  ut  supra,  deponed.  That,  in  U 

God.                             John  ^  edderburne.  February,  or  beginning  of  March  lasi 

And.  Fletcher.  ceased  Charles  earl  of  Strathmore,  j 

Dr.  CharUs  FolheringAame,   physician    in  *»aven  the    pannel,  with  another  ire 

Dundee,  solemnly  sworn,  pui^ged,  examined  '^^^o™  ^l>«  deponent  did  not  know,  car 

and  intenrugated,  deponed  conform  to  Thomas  deponent's  house,  called  for  a  dram,  \ 

Criditon,    the  former   witness,  tn   omnibus,  deponent  served  them  with  himself: 

Causa  scUnt  lit  patet.    And  this  is  the  truth  as  Eari  first  drunk  to  Finhaven  and  his  fai 

be  should  answer  to  God.  **>en  Finhaven  drunk  the  eari  of  Stni 

Cha.  Fotheriwguamb.  ^^i>^  and  his  family's;    and  at  sev< 

Ad.  Cockburne.  times,  when  the  Eari  was  not  present 

^  ,                                 -      .      «^        ,     «  ponent  saw  and  beard  Finhaven  drin 

Follows  the  Witneswss  for  the  Pannel's  Ex-  gaid  eari  of  Slmthmore's  health.     ] 

culpation :  h^  lias  hail  occasion  often  to  see  Finhi 

Margaret  Catnegie,  lady  Auchterbouse,  so-  ^  "»  company  with  him.  and  observe 

lemnly  sworn,  purged,  examined  and  interro^  ^ay«  to  be  of  a  good  temper,  and  no 

gate,  ut  supra,  deponed,  That  on  the  afternoon  «*'««>«»  to  quarrels.     Causa  saentta  pat 

Sf  the  9Ui  of  May  last,  the  earl  of  StraUimore,  tbis  is  the  truth  as  be  should  answt^r  t 

Bridgeton,  and  rinhaven,  were  in  the  depo-  «t*^*?  ^ 

Dent's  bouse ;  she  observed  no  manner  of  dif-  ^*  ^-ald 

lierencc  betwixt  the  earl  of  Strathmore  and  Fin-  David  Ogihie,  son  to  sir  John  Ogil< 

haven;  and  that  the  pannel  and  the  other  com-  verquharnty,  solemnly  sworn,  piir(> 

pany  drunk  my  lady  Strathmore's  health  twice  mined  and  interrogate,  ut  supra,  depot 

over,  and  the  pannel   tossed  up  the  glass ;  be  has  bad  frequent  occasions  uf  beini 

during  that  time  Bridgeton  was  usin^  roii|fh  !  pany  with  the  pannel,  and  has  oft- tin 

expretsioos  to  the  pannel»  and  was  taking  him  !  aim  testify  'his  respect  and  regard  foi 
by  the  breast,  and  verv  rude  to  biro ;  and  that ;  earl  of  Strathmore,  by  naming  and  dr 

viieD  a|rlassof  brandy  was  brought,  she  de-  i  his  heahh;  and  particulariy  did  bear  hii 

•ired  Bndgeton  to  take  a  dram»  and  be  desuned  |  bis  own  house;  in  the  month  of  Marcl 

ll  fboiild  be  giYCD  to  FmhafcOt  ber  hraUicr ;  ■  list,  when  the  deponent  ^ae  visiuog  h 


firtiie  Murder  nftht  Earl  of  Sirathnure. 

■r,<Jkcw  him  drink  botb  to  the  EifI'b 
miik  mmtco'a.  Deponed,  Thai  for 
ktiirfear  ynra  pAxt,  he  hui  beeiiiu- 
}j  HMuina  with  tho  psnurl,  tind  ob- 
Munn  to  be  of  a  goei  am)  peact)- 
fff;tMlbechar«cterLea1wayi  heirtl 
ti  Um  couDliy,  »u,  That  he  was 
M^leand  good  temper,  and  uo  waja 
■t.  Caiua  Kienlmpattt.  Andthii 
rt  n  be  •faould  aiuwer  to  God. 

David  Ooilvie. 

Dl.    EUKIKB. 


A.  D.  17S8.  [!.W 

aqd  Mine  liaen*  of  bu  «ini  to  put  on,  at 
leattthe  coat  was  hi*  own,  vrhieb  he  helped  to 
pnt  00  him,  and  to  wuh  aod  clean  hit  face.' 
The  deponent  tpnke  to  him  aaiiably  to  the  oc- 
casion of  his  villi,  both  in  mperi  tobndrunlc- 
enoeu,  *nd  what  wan  tiubtiihed  atHroad  lie  iiad 
enminiUed  upon  the  earl  of  Strathmore,  by 
giviafK  him  a  wouad ;  upon  heariniC  whereof, 
and  tbe  depooeot  further  iaviny,  Tliat  he  iiail 
to  bisgreataatiaftctionbetrdtbe  earl  of  Strath- 
more praj  to  God  lo  fo^ive  fainri :  upon  lh« 
the  pannS  fetl  into  tbo  greateat  diaorder,  toH- 


l>  Jfarfj'ne,  mbisler  of  the^pd  at 
mnly  Kivorn,  pur^d,  ezmnined  and 
',  at  aipra,  depooed,  That  he  the 
«vii)(!  had  (nme  affair  tndo  with  the 
«rl  of  Strathmore,  as  one  of  the 
ibla  the  deponent's  jiariiih,  on  which 
I  dcpODCDt  went  lo  trail  of  hU  tord- 
boiiM  of  Glaminit,  hut  had  the  mia- 
aiaa  him  ;  and  upon  his  return, 
ud  of  the  pannri,  ami  spnke  li>  him 
■,  Ictlins  bim  how  be  had  missed  my  , 
deaired  that  the  jiannel  would  fall 
npedieni  to  bring  either  his  lard-  I 
nc  from  bim,  lo  meet  with  ihe  rest 
ora.  Upou  which  the  pannel  ad- 
leponeDt  once  more  lo  wait  of  bis 
Biiuiiniia;  and  t<)r  hisrecommeoda- 
itrodoctioD,  be  would  write  a  letter 
I.  and  acquunt  him  in  it,  that  he 
«rer.  Aciwrdingiy  the  pannel  did 
Her  to  the  Earl  to  the  foresaid  pur- 
I  ht!  delifercd  lo  the  deponenl ;  and 
ibe  deponent  did  igaia  t(a  to  Glam- 
lliat  tune  also  had  the  misfortune  to 
irdibip;  upon  which  he  ihe  depo- 
tfd  the  letter  to  one  Mr.  Greenhill, 
servant ;  and  the  meeting  of  the 
<ldin|T  upon  tbe  Wednei^dny  there- 
said  Mr.  Greenhill  came  irom  his 
ind  ntleniled  Ihe  meelinfr :  and  de- 
tt  the  writing  of  the  foresaid  lutler, 
rin^  of  it,  was  about  the  end  of 
hc;;inDiD^  of  April  last.  Deponed, 
Irpooent  has  tor  these  ihree  years 
ntiinalely  acquaint  with  the  pannel ; 
:  the  wbule  CDuise  of  his  acqiiainl- 
bserTed  him  always  to  be  regular  in 
d  of  a  [leaceahlc  temper  and  disposi- 
h  i<i  Ihd  character  he  bears  in  the 
Cuuu  icicuftf  palel.  And  Ibis  is 
a  be  atioald  answer  to  God. 

John  Martine. 

D*.  Ekskinl. 


«f    MaztLtll,  ^     , 

solemnly  sworn,  purgjcd,  examined 
tgate,  ut  tupra,  deponed,  Thai  «oon 
sriofStralbmore  received  his  wound, 
rat  waited  of  bim,  aod  from  him  be 
iIm  prison  and  visited  the  pannel, 
fiMwl  in  (freat  disorder,  and  under 
— iuna  of  drunkenness,  his  cluaihi 
',  and   hi)   face 


...jle,  and  hanging  his  head  downwards,  cried 
out,  Good  God  I  liave  1  woimded  the  earl  of 
Strathmore,  a  person  for  nhuiD  I  bad  ^at 
kindness,  and  against  whom  I  had  no  deai^i  7 
CoHfa  tdenl'ut patet.  Aud this  ti  ibe  tnilh ■• 
be  should  answer  to  God. 

Ja.  HaxwuxL. 

Da.  Ebskikb. 
The  Lords  Jnstice  Clerk  and  Coram isaioaerB 
of  Justiciaiy,  ordaioed  the  Asuseto  iodnae  in- 
stantly, and  return  their  Verdict,  in  Ibia  plsoe, 
against  tO' morrow  at  twelve  o'clock,  aod  the 
baill  fifteen  to  be  then  present,  «ach  under  tbtt 
pain  of  law,  and  tbe  pannel  to  ha  carried  back 
to  prison. 

CoBU  JusTicuBu,  8.  D.  N.  Be^  lenla  id 
novo  Sessioiua  Domo  Burgi  do  Edin- 
burgh, tertio  Die  Hessis  Augnsti,  Uilto- 
simoseptingenie^mo  rigeaimo  oetaro,  per 
honoiabiles  Viros  Adainum  Coddiunieda 
Urmistuun,  Justiciarium  Clericum  ;  Do- 
minum  Gulielroum  Calderwood  de  Pol- 
touQ,  Magistrum  Davidem  Erskine  <!« 
Dun,  Dominum  Gualierum  PrioKle  de 
Newhall,  et  Alagistrum  Andreani  FTctcher 
de  MiltouD,  CnmmiiisiunBrias  Justiciaria 
diet.  8.  D.  N.  Regis. 

Curia  legitime  affirinula. 

Jamet  Carnegie,  of  Finhaven,  pannel, 

Indicted  and  accused,  as  in  all  tbe  former 
sederuuts. 

The  tbregoiog  peruins  who  passeil  upon  the 
Assize  of  the  abive  nannel,  returned  their  Ver- 
dict in  presence  of  the  said  lords,  and  whereof' 
the  tenor  follows: 

Edinburgh,  Ihe  Bid  of'  Auguit,  1798. 

The  shore  Assize  haling  inclosed,  did  chooH 
sir  Kniiert  Dickson  uf  Inveresk  l»  be  their 
of  the  gospel  chanccllur,  and  George  Halibiirtoo  of  Fordel 
'  lobe  their  clerk;  Ami  baring  considered  lb* 
in'liclmeiit  pursurd  at  the  inMauce  nf  Soranna, 
cuunteksot  Strathmore,  anil  Mr.  Jameg  Lyon, 
brolher-german  and  iienrest  of  kin  l<i  the  de- 
ceased Charled  earl  of  Strathmore,  with  con- 
courst^,  and  at  thu  inttatire  of  Duncan  Forbes, 
FM).  his  majesty's  ailrocote,  for  his  highnnB*a 
'  ilerest,  agaiutt  Jaui«i  Carnegie  of  FiuhaveR, 


vith  dirt;  the  deponent  helped  him     pannel;  the  lords  juslice-clerk  and 


r  hia  ckitbes,  aud  seat  for  a 


siuneti  of  juMtdary  tbcir  iuleriocutor  tbtr*- 


151] 


2  GEORGE  II. 


upon,  vith  the  wHnetMs'  depontioni  aiUncfd 
twT  prOfin^  thereof;  with  tbe  witneMM'  dcpo- 
Biljocu  Mliluced  for  the  pannel'i  exculpation  : 
Tbey,  bv  plurality  of  roicei,  fiad  tbe  pannel 
Not  Guilty.  Id  witoeM  whereof  ttiir  pmenta 
are  subacrihed  by  oor  naiil  chancellor  and  okrk, 
iu  our  namea,  place,  day,  munlb  anil  year  uf 
God  above- written. 

"  Ro.  nirKsiN,  Chancellnr. 
'•  (JEO.  ll.AUDiiBTON,  Clerk." 
'  TbeLordaJualice-ClerkandCommiwioners 
of  Juaddtry,  faaTiD^  cousidered  the  foregoing 
Verdict  of  Amize  relnrned  against  Jsmes  Car- 
upgje,  of  Finhareo,  pannel:  They  a&suilzied, 
and  hereby  HEioilzie  nim  simpliciter,  and  dis- 
Diiued,  and  hereby  dismiis  him  from  itie  bar. 
Ad,  Cockbubne. 

AaSTBACT  OF  SOM£  AcTt  OF  PaRLIAMBNT' 

IN  THB  VK«Y  Words  op  the  Statutes 

TRSMSELVBS,     REFKKRSD     TO     IN     THB 
rOREGOING  AruUMXHTS. 

Jaim*  1,  pari.  3,  act  51,  intitled,  <'  Of 
fbrethonirhl  FetoBy  and  chaud  metla ;"  ala- 
tutec,  "  That  aa  loon  a*  any  camplaJDt  ii  made 
to  Justices,  ■heriffs,  baillies.  Sec.  they  iliall  en- 
quire diligently  (i.e.)  without  onie  laTuur,  gif 
Uiadeed  waa  done  upon  foretbonglit  fetony, 
or  throw  aiidden  chaud  mella :  and  0{  it  be 
fomd  ftirethotight  felooy— the  life  and  goods 
oftbetreipaaaerlobein  thekiug's  will:— and 
gif  the  treipaa*  be  dime  of  8u<ldeu  efiaud  mella, 
ibe  parly  ikaitbed  shall  follow,  and  the  party 
IranagreiMir  defend,  stler  tbe  coune  of  the  old 
lawa  of  the  realm." 

ilamcE  1,-pnrl.  6,  act  05,  intitled,  "The 
Uanslayer  luld  be  punued  until  be  be  put  furtb 
of  the  Realni,  or  brought  again  to  the  PJace  of 
theHlauchter;"  ((he  act  appointing  (he  ine- 
Ihod  of  pursuit^  manslayers)  statutes,  "  That 
quhaireTer  he  hspjienia  to  be  takin,  that  achi- 
reSe,  aluart,  or  bailie  of  the  regality,  sail  send 
bim  to  the  schireSe  of  (he  nixt  schirefrdoin,  the 
qnbilk  sail  receire  him,  und  send  him  (0  the 
Dint  suhirefTc,  and  swutimrth  from  schirefTe  to 
Mhireife,  quhill  be  be  put  to  the  achirefle  of  the 
pobire  where  the  deede  was  done,  and  (here 
■all  tbe  luw  be  miiiistred  (o  (be  party  ;  and  git 
it  be  fbre(hDUght  lelouy,  he  sail  die  iherefnre." 

Jumes  1,  pari.  G,  act  05,  iuliiled,  «  Of  In- 
quisition of  forethought  Felony  lo  lie  taken  by 
an  Awice;"i(statutea,  "That  (he  officiate  (i.e. 
ihejurlKi-s  ordinary)  sliali  give  them  tlie  know- 
ledf^  ul  an  ashize,  wlietlivr  it  be  li]re( bought 
ftlony,  or  sildJcnly  duuc:  and  gif  i(  be  sud- 
denly dune,  deruain  iliem  as  (he  law  (read  of 
belure;— and  gif  it  he  forethought  felony, — 
iteuiaiD  Ihein  as  law  will." 

Jamea  3,  pari.  5,  act  35,  intitled,  "  Of 
Slauchler,  or  foretJiought  Felony,  of  Sod- 
dutje,  and  Flying  to  Girili."  Item,  "  Because 
of  tbe  eschewing  of  great  ilaueliter  quhich  Inm 
baw  tigtat  caiumauDRiaMXtt  the  kia^'a  Ueg**! 


Trial  of  JmtKM  Carnegie,  [ISf 

DOweof  late,  baith  of  foretho light  felony,  mat 
of  auddantie  :  and  hecausa  monie  peraoos  co^ 
Riit  tUuch(er  upon  foretbeoght  felaoy,  in  tmota' 
they  sail  lie  deiiPDded  throw  the  inamunilw  af 
(he  halie  kirk  and  girth,  and  paMia  and  rrrmsiaii 
insanctiiaripa;  it  u  tbonght  expedient  ia  tbi» 
prBKul  psrliameot  tor  (he  stanching  of  ibo 
Slid  slouchten  in  time  coming,  quhaiterv 
slaiicbter  is  committed  on  forethought  felenf,' 
and  the  commiiter  of  the  said  sUuchter  po^w 
und  puUii  kim  in  girth,  for  the  safiie  of  bii 
|>erson,  the  schireSe  sail  come  to  the  ordinoTi 
III  places  ^ubair  he  lie*  under  hia  jiiriadidiia, 
and  in  places  exempt  to  the  lords  maintentf 
the  girth,  and  let  them  wit,  that  sick  a  ■■■ 
has  coniinitled  sick  a  crime,  on  fbrelhoi|bt 
felony,  "lanijuam  insidiutor  etpcrindustriim," 
for  qubilk  the  law  grants  nut,  nor  learei  oat 
sick  persona  In  joyis  the  immunities  of  tha 
kirk.  An.l  the  schirafle  sail  require  tbe  or- 
dinar  to  let  a  knowledge  be  taken  be  an  SMua 
on  15  dayi,  quhidder  it  be  forethought  felony, 
or  not :  anrl  if  it  be  tbundeo  foretliuught  felony, 
to  be  puniKhfd  after  the  king's  laws :  and  ifit 
be  fuundej)  suddantie,  to  be  restorid  agais  Ml 
the  freedome  and  imniuaiiy  of  balie  kirkai^ 

James  4,  pari.  S,  act  18,  intitled,  "  AdmI 
Manslayeritakeu  or  fugitive  ;"slatuiea,"'lW 
where  any  happens  to  he  slain  within  (be  reah%'' 
tbe  mantlayer  shall  be  puraued  (in  a  certlW 
manner),  and  wherever  be  happena  to  be  over^' 
lane,  that  tbe  ichirelle  tall  incontinent  ant 
him  Iu  (he  nixl  ichireiTe,  and  to  forth,  qoUl 
he  be  put  to  tbe  ichirelfe  of  the  scfaire  quMM 
the  deed  waa  done ;  and  (here  sail  justice  hi 
iiicoD(inent  dune.  And  gif  it  be  furetbonglt 
felony,  to  die  therefore." 

Jamea  5,  pari.  4,  act  23,  intitled,  ■'  no 
Haisters  of  the  Gii1h  suld  make  depute*,  qoko 
suld  deliver  Malefacture*,  thai  may  not  biwb 
(he  priviledgc  thertuf ;"  ststiiies,  "  That  tlMy 
should  be  huldrn  in  all  time  comeing,  to  da* 
liver  all  committera  of  sUuchlir  upon  foro> 
tliaught  felony,  that  (lira  to  trjnb,  and  nlbcM 
Iresiiai>seni  that  breaks  the  same,  and  may  oM 
biuik  tbe  privileilge  thereof,  conform  to  ibl 
.  common  law  sud  (be  act  of  parliament  ma^ 
thereupon  of  before,  to  the  king's  official^ 
atktiod  and  desireaod  tliero  tounderlythelaw.** 
Follow*  the  intire  act  of  Charles  3,  pari.  1, 
I  chap.  23,  intitled,  "  Conreming  the  Wt- 

i  vetal  Degreea  of  caiual  Homicide." 

"  Our  sovereign  lord,  nitli  advice  and  con- 
i  sentof  ilie  estates  of  this  pres'-ut  parliament, 
I  for  reniuviug  uf  all  quektinn  and  doubt  that  inay 
'  arise  heraatter  in  criminal  pitrsuila  for  slaogh- 
\  ter ;  Btatulei  and  ordains,  Tliot  the  rasca  i( 

I  homicide  after  liillowiDg,  via.  casual  1 iiifc. 

liomicide  in    lawful    defence,    and    iiominido 
conmiltad  upon  Ihievet  and  robbers  bra>kia|f 

bouaaa  in  the  night ;  or  in  case  of  1 in  J 

(be  liffie  of  maatprtul  doficdation,  or  in  t ho  p 


orimea,  w  of  nek  who 


dedared  rebela  br  coaiBl 
rho  asaiat  owl  Miad  DM 


m 


Cote  of  Edmund  Curil. 


A.  D.  1727. 


[154 


■Wtacrf  nuftcrful  depredators  by  armi,  and 
fe|  firce  0|ipoae  ibe  piinuit  and  appreheadio^ 
tfihiB,  wluch  abalt  happen  to  tali  out  in  time 
mmiai^t  aor  anv  of  them,  shall  not  be  punished 
hf  daili ;  and  tbat  uotwithstandinfl^  of  any  Uws 
«  arts  of  parliament,  or  any  practie  made 
himfais^  or  observed  in  punishing  of  slaugh- 
tv:  h«thil  the  BWDslajer,  in  any  of  the  cases 
asaoilaied  from  any  criminal  pur- 
'  aninst  him  for  his  life,  for  the 
r,  before  any  jud|fe  criminal  with- 


JiiifHsginna,     Providing  always,  That  in 
AfCHtsf  hooaicide  casual,  and  of  homicide 
lotwithstanding  that  the  slayer  is 


by  this  act  free  from  capital  pmsishment ;  yet 
it  shall  be  leisum  to  the  criminal  judge,  with 
advice  of  the  council,  to  fine  in  his  means, 
to  the  use  of  the  dehinct*s  wife  and  baimf,  or 
nearest  of  kin,  or  to  imprison  him.  And  hb 
majesty,  with  advice  foresaid  declares,  that  all 
decisions  given  coiiibrm  to  this  act,  since  the 
13th  of  February,  1649  years,  shall  be  as  suffi- 
cient to  secure  all  parties  interested,  as  if  thia 
present  act  had  lieen  of  that  date :  and  thataH 
cases  to  be  deciiled  by  any  judges  of  this  king- 
dom,  in  relation  to  casual  homicide  in  defence^ 
committed  at  any  time  heretofore,  shall  be  de- 
cided as  is  above  expressed." 


470.  The  Case  of  Ed  if  und  Curll,*  Bookseller,  in  the  KingVBench, 
for  publishing  a  Libel :  1  George  II.  a.  d.  17^7. 


Mich.  Term.  1  Geo.  3. 


L's  Rex  v.  Eomuno  Curll. f 

Jn6BllATION  exhibited  by  the  AttomPT 
against  the  Defendant,  Edmund  Curll, 
Itie  '*  ezistens  homo  iniquns  et  scele- 
M  oeqiiiter  machinans  et  intendens  bonus 
■Mi  snfaditonim  hujus  regni  corrumperc  et 
dMsl  iMi|nitiani  inducere,  quendam  tnrpem, 
bpMi  et  obscoeoum  libellnni,  intitulat  Venus 
is  a  Ckyster,  or.  The  Nun  in  her  Smock,  im- 
■r^niter  impressit  ct  publicavit,  ac  impri- 
■t  poUjcari  causaTit,"  (sett I u^  forth  tlie 
I  lewd  uassageft)  **in  malum  exem- 
,**  &c.  atko  of  this  the  defendant  was  found 

Trinity  Torm  last,  it  was  moved  in 
ivfjodgineothy  Mr.  Marsh,  that  huwever 
'  ml  may  lie  punishable  fui*  this  in  the 
Conrt  as  an  offence  *'  contra  honos 
vet  it  cannot  be  a  libel  for  which  he  is 
in  the  Tcmi)oral  Court.  Libeliu^ 
I  a  diminutiTe  of  the  won!  liber ^  and  it  is  /i- 
Je/Ztfi  from  its  bein<7  a  book,  and  not  from  the 
■ttirrofits  contents,  in  the  Case  De  Libel- 
b famous,  my  lord  Coke  says,  that  it  must  be 
l^auHC  the  iiublic,  or  some  pnvatc  person,  to  be 
a  bbel,  ami  1  do  not  remember  ever  to  have 
heud  this  opinion  contradioted.  Whatever 
itads  to  corrupt  the  morals  of  the  people,  ousfht 
ti*  be  censured  in  the  Spiritual  Court,  to  which 
properly  all  such  causes  belong.  What  their 
pcuerediDgs  are  I  am  a  stranjjrer  to :  But  for 
■e  u  insufficient  to  say,  I  do  not  find  any  case, 
■herein  they  were  ever  prohibited  in  such  a 
uDse.    In  the  reign  of  king  Charles  2,  there 

*  Probably  the  iiotorions  bookxeMcr.     As  to 
«b<Mn,see  the  Duaciad.    See,  al^,  vol.  1>, 

t  Nlraiige*s  Reports,  vol,  Q,  p.  7^3.  See  1 
IMi.  t9.  Nee  Annett's  Case,  1  niackst.  395, 
%a^  Ecclesiastical  Li*.v,  tii.  Prolaiiencss, 
flialogiw  3,  p.  113.  See,  a1<*^».  Kast'tf 
ef  the  Crown,  c.  1,  §  I,  and  WUkes^s 
fm  publishipg  the  Kssay  un  Womuu. 


was  a  filthy  run  of  obscene  writings,  for  which 
we  meet  with  no  prosecution  in  tiie  Temporal 
Courts  ;  and  since  these  were  things  not  fit  to 
go  unpunished,  it  is  to  be  supposed  that  my  lords 
the  bishops  animadverted  upon  them  in  theii; 
courts.  In  the  case  of  the  Queen  o.  R«ul, 
6  Ann.  B.  R.  there  was  an  information  for  a 
liltel  in  writini;  an  obscene  book,  called.  The 
Fifteen  Pluuues  of  a  Maidenhead ;  and  alW 
conviction,  it  was  moved  in  arrest  of  judgment, 
rhat  this  v«as  ni»t  punishabli:  in  the  Temporal 
Co'Tts;  and  (he  opinion  of  shief  justice  Holt 
was  so  striiiig  w'\i\\  the  oltjection,  tliat  the  pro- 
secutor never  tiiiiught  fit  to  stir  it  again. 

Attotnfjf  General  coutra.  I  do  not  observe  it 
is  pretemlcil  ihere  is  any  other  way  of  punibhing 
the  (i«:fen(iaiii  :  for  if  the  S|)iritual  Court  had 
done  It,  instances  miglit  be  given  ;  and  it  is  no 
argument  to  say,  we  meet  with  no  prohibitions : 
such  a  way  of  argument- would  constnie  ihem 
into  all  sorts  of  jiirisijictions.  What  I  insist 
u|M>n  is,  that  this  is  an  offence  at  common  law, 
as  it  tends  to  corrupt  the  morals  of  the  king's 
subjects,  and  is  against  the  peace  of  the  king. 
Peace  includes  {2;ood  onler  and  govern tneot, 
and  that  peace  may  be  broken  in  many  in- 
stances without  an  actual  force.  1.  If  it  be 
an  act  against  the  coiKtitution  or  civil  govern* 
mem.  2.  If  it  be  against  religion.  And,  3. 
If  against  morality. 

1.  Under  the  H'stliead,  fall  all  the  cases  of 
seditious  words  or  uriiiiigs,  2  Roll.  Abr.  pi.  S  ; 
Vent.  *61\\Z  Kelile  ^*4li  and  the  Case  of  the 
Quern  v.  Bedford,  Mich.  \1  Ann.  whose  trea- 
tise of  Hereditary  Ri^ht  was  held  to  be  a  libel, 
though  it  contained  no  reflection  upon  any  part 
of  the  government. 

2.  It  is  a  libel,  if  it  reflects  upon  religion,, 
that  great  basis  of  civil  government  and  liberty ; 
and  it  may  be  both  a  s|)iritual  and  temporal  of- 
fence, Cro.  Jac.  4'21  ;  2  Koll.  Abr.  78,  pi.  2  ; 
1  Venl.  293.  3  Keble  (507, 021.  In  Tremayne's 
Entries,  ri26.  there  is  v.  sentence  to  have  a 
priper  fixed  upon  the  defendant's  head,  iiittmat- 
in;^,  tIi:U  he  had  uiiered  blasplieraous  words, 
tending   to   the   subversion    of  government. 


135J 


1  GEORGE  11. 


There  U  one  Hall  a 


Pucb.  10  Adu.  UeKini  s.  Clcndon,  tberc 
special  rei'Jict  on  a  libel  abuul  the  Trinity,  ind 
it  wu  Dot  made  a  doiihl  of  in  that  case. 

S>  As  to  tnonUilj.  Ueatroying  the  peace  nf 
the  gOTemiuent ;  Tur  j^ernracDt  ii  du  more 
than  public  order,  wbich  is  muulil]'.  My 
lordchierjuiticeHolt  uiieil  lossy,  Christianity 
if  pan  dI' the  lair:  Andnbynol  morality  too? 
I  do  not  iDsiit  tbat  ererj  iinioDral  act  ii  ia- 
tlictaUe,  ancb  as  telliog  a  lie,  or  Ibe  like :  Bat 
if  ilisdeatriicliveof  morality  in  eeoenl;  if  it 
4oet,  M  may,  affect  all  tbeltinga  sabjectf,  it 
then  is  an  ofience  of  a  |juhlic  nature.  And 
upon  this  distinction  it  is,  that  particular  acttot' 
fornication  are  not  nunisbaUle  m  the  Tem|>onl 
Courla,  and  bsirdy  houses  are.  In  sir  Charles 
tSedley'a  caic*  it  tva*  said,  that  this  eourti* 


Case  lifEdmuud  Curtl, 

the  eurtos  tnorum  of  the  kins' 
Hid.  16il,  and  U|H)n  this  fbundatit 
been  many  prosecutioDS  against  t 
obscene  plays,  Ihonjfh  they  liari 
enough  <o  get  the  proceedings 
juilgraent,  Treniayne'a  Enlri^,  i 
315.  Lord  Grey's  Case,  [Vol. 
this  Co1Ic<:lion.]— Mich.  10  Wil 
Hill,  the  defendant  nas  iudiete 
some  obsceue  poems  of  my  lord 
tending  to  the  corruption  of  ; 
which  he  nent  abroad,  and  w 
which  he  wouiil  not  havo  done, 
bad  tbonght  it  no  libel.  The  Sj 
punish  only  iierBonal  spiritual  i 
words  ;  if  it  is  reduced  to  writiii| 
poral  offence,  Salk.  553;  ftlo.  tiS; 
iiishable  as  a  libel.  Uy  lord  Col 
De  Libeilis  famosis,  had  nothin 
acandalouB,  defamatory  libels. 


naoD  law  lor  aerenl  mitdenieuiora  againit  the 
kbff'a  Mac«,and  which  vera  to  the  great  scandal 
of  Chmtiaiiity ;  and  the  cattle  fas,  for  tbat  he 
•hemd  his  nidied  body  in  a  balcony  in  Corent 
Garden  to  a  great  multitude  of  people,  and 
there  did  sach  things,  and  apcke  such  words, 
ju.  mentioning  some  particaUrs  of  hii  misbe- 
faarionr,  as  throwing  davo  bottles  (pissed  in) 
vi  el  armit  among  the  people^  Keble's  Iteporta, 
lot.  1,  f.  SSO.  Fortescue's  Reports,  99,  100. 
And  thii  indictment  was  openly  read  to  him  in 
court;  and  thejuilices  told  him,  that  notwilh- 
Handing  there  was  not  then  any  Star-chamber, 
yet  they  would  hare  him  know,  tbat  tbe  Coart 
iif  King's- bench  was  the  aulot  morunt  of  all 
the  king's  subjects;  and  that  it  was  then  high 
time  to  punish  such  profane  actions,  commilled 
against  all  modesty,  wbich  were  as  frequent, 
as  if  not  only  Cnristianity,  but  morality  also 
had  been  neglected.  Alter  be  had  been  kept 
in  court  by  recognizance  from  Trinity  term 
to  the  end  of  MichaelniBS  term,  the  Court 
required  him  to  tuke  his  trial  at  bar :  but 
being  advised,  he  sulinitied  himself  to  the 
Court,  and  confesaed  the  indictment,  15  Car. 
9,  1643.  Tbe  Micliadjnas  term  fullowiiig,  the 
Court  considered  what  judgment  to  give;  and 
inasmuch  as  he  was  a  gentleman  of  a  very  an- 
cient family  (in  Kent,]  and  his  estate  incum~ 
bered,  (not  intending  bis  tuin,  but  his  reforma- 
tion] they  fined  him  only  3,000  marks,  and  tn 
be  imprisoned  a  week  without  bail,  and  to  be  of 
guodbebariour  for  three  years,  Sid.  lliti,  ul.  29. 

TtSawit    nf  thn    (.aai    ■>    fid  anrl     I  in  Kirnii-,- 


See  the  Case  of  Wilkes,  in  this  Collection, 

flUl. 

Wood  (Athence  p.  1 100)  reporla,  with  evident 
incorrcctueu  hnwerer,  tbe  case  of  sir  Charles 
Sedley,  as  follows : 

"In  the  montli  of  June,  liiGS,  this  our  au- 
titer,  sir  Charles  Bnlley,  Charles  lotil  Buck- 
fctntt  (aRerwanls  earl  nf  Miihllesex)"  [more 
eommonly   mentioned  by  his  title  of  t«rl  of 


Dorset!  "  air  Thomas  Ode,  4 
cook's  liouse  at  the  aign  of  the  < 
street,  i^ear  Cnvent  Garden,  will 
of  Westminster,and  being inflaDi< 
liquors,  they  went  into  the  baico 
1o  that  houae,  and  putting  down  i 
they  eKCremeotixed  in  the  street 
done,  Sedley  atriiiped  bimselt'  na 
eloquence  preached  blaspliemy  1 
whereupon  a  riot  being  raised,  (h 
came  very  clamorous,  and  wouli 
tbe  door  next  the  street  open  ;  hi 
dered,  the  preacher  and  his  ci 
pelted  into  their  room,  and  the 
longing  thereunto  were  broken 
being  soon  spread  abroad,  especii 
natical  party,  wbo  aggravated  it  i 
by  making  II  the  most  scandaloil 
tnre,  and  nothing  more  reproach 
than  that ;  the  said  company  Ve 
to  the  court  of  Justice  in  Wet 
where  being  inilicted  of  a  riot  b 
bert  Hyde,  lord  chief  justice  ot 
Pleas  were  nil  fined,  sir  Charle 
live  bunilri^d  pounds." 

Aflcr  relattnif  the  insolent  and  i 
haviour  of  Sedley  in  court,  Wt 
thus: 

"  The  day  fur  payment  being 
Charles  desired  Mr.  Henry  K 
another  gentleman,  to  apply  the 
majestv  to  get  it  off;  but  insteai 
l>eggea  tbe  said  sum  of  his  majes 
not  abate  sir  Charles  twn-|>ence  o 
"  Mark,"  exclaims  Johnson  in  hh 
let,  *■  tbe  friendship  of  the  dissoh 

Sir  John  KereHby  in  his  Memoi 
7}  indicates  that  at  that  period 
highest  rank  and  station  were  ii 
begging  from  tl)«  crown  the  estat 
accused  of  forfeitable  offences  in  i 
their  conviction  :  and  from  his  ac 
likely,  that  false  a< 

obtaining  sudi  futfeiiorca.    The 


i5n 


forpublithittg  a  Lib^. 


A.  D.  17C'7. 


[I5S 


ahajrutokuknisatecbnicol  word;  id  this  sayinc*  Why  doirt  yon  go  to  the  Spiritual 

OS il  mj itUMi  R8  an  obscene  little  book.  Court?   Which  was  ^^ing  a  false  reason  lor 

iliiittiMcawofRrad,*  there  was  no  judg-  that  sudden  opinion :  Now  it  ap^iears  there  ia 

,  htt  il  went  off  upon  the  chief  justice's  do  instance  of  the  spiritual  court's  intermed- 

"  Who  b  libelled  here  ?  This  may  be  said  to  be 
a  temptation  to  incontinence ;  and  therefore 
why  not  punishable  in  the  ecclesiastical  court  f 
This  tends  to  bawdry,  as  well  as  soliciting  qf 
chastity ;  but  they  do  it  only  to  get  money." 

Lord  Forteseue,  at  the  end  of  his  Report, 
mentions  this  case  of  the  King  and  Curil, 
'^  which"  he  says  "  was  an  indictment  for 
printing  and  publishing  a  libel,  called,  The 
Nun  in  her  Smock ;  which  contained  several 
bawdy  expressions,  but  did  contain  no  libel 
against  any  person  whatsoever :  the  Court  gaTt 
judgment  against  the  defendant,  but  contrarr 
to  my  opinion  ;  and  I  quoted  this  case.  And, 
indeed,  1  ihought  it  rather  to  be  published,  on 
purpose  to  expose  the  Romish  priests,  the  fa- 
ther confessors,  and  Popish  religion." 

But  since  this  case  of  the  King  v.  Curll,  the 
Court  of  Kind's  -bench  without  iiesitation  ex- 
ercises jurisdiction  over  such  publications,  and 
over  other  oflences  contra  bonos  mora^  which 
are  not  attended  with  breach  of  the  peace. 

Upon  an  attempt  (8  Geo.  8,)  to  move  in  ar- 
rest of  judgment  in  the  case  of  Woolston,  who 
was  oonvicteil  on  four  informations,  for  his 
blasphemous  discourses  on  the  miracles  of  our 
Saviour,  the  Court  ilcclared  they  would  not 
suffer  it  to  be  debated,  whether  to  write  against 
Christianity  in  general,  was  not  an  offence  pu- 
nishable io  the  TemjKiral  courts  at  common 
law  :  it  having  been  settled  so  to  be,  in  Taylor's 
case,  1  Vent«  29^;  3  Keb.  607,  621;  and  in 
the  case  of  the  King??.  Hall  (see  1  Str.  416,  [419, 
cd.  of  1781-2.])  They  desired  it  might  be 
taken  notice  of,  that  they  laid  their  stress  upon 
the  word  *  general,'  and  did  not  intend  to  in- 
clude disputes  between  learned  men,  upon  par- 
ticular controverted  points.  2  Str.  834,  [8v^0 
ed.  of  1781 -a] 

In  the  case  of  the  King  against  sir  Francis 
Blake  Delaval,  and  others,  which  was  a  prose- 
cution for  a  conf!piracy  to  transfer  a  female  in  - 
font  apprentice  for  the  purpose  of  prostitutioni 
lord  MuiisiWId  said  :  **  1  remember  a  cause  in 
the  Court  of  Chancery,  wherein  it  appeared, 
that  a  man  had  formerly  [ipi.  formally]  as- 
signed his  wife  over  to  another  man  :  and  lord 
llardw  icke  directed  a  prosecution  for  that  trans* 
action,  as  lieing  notoriously  and  grossly  against 
public  decency  and  good  manners.  And  so  is 
the  present  case. — **  It  is  true,  that  many  of- 
fences of  the  incontinent  kind  full  properlj 
under  .the  jurisdiction  of  the  ecclesiastical  court, 
and  are  ap|iroprinttd  to  it.  Hut  if  you  except 
those  appropriated  cases,  this  court  [H.  R.] 
is  the  cusfoa  morum  of  the  people,  and  has  the 
superintendcncy  of  offences  contra  Ifonus  mores : 
and  upon  this  ground  both  sir  Charles  Sedtry 
and  Curll,  who  had  been  guilty  of  offencr's 
against  good  manners,  were  prosecuted  here.' 


At  mmk  of  Soodind,  bear  ample  testimony 
ti  iht  fRiaknoe  of  practices  of  this  sort  in 
tet kiipH,  during  the  reigns  of  Charles  the 

Jlf  jM.  21  Jac  cap.  3,  it  is  declared  and 

'  Iht  all  commissions,  grants,  &c. 

KMde  or  granted,  of  any  grant  or 

•    M  jf  *^  l*n€fit»  profit  or  commodity,  of 

mf  Mtee,  penalty  or  sum  of  money,' that 

*""-'^  te  Ai  bv  any  statute  before  judg- 

!<V^  bio,  are  altogether  contrary  to 

^  thb  realm,  in  no  wise  to  be  put  in 

>•  What  was  said  by  the  judges  in 

iuMrfpnal  statutes  (Hil.  8  Jac.  7  Co. 

VfHI  mdily  be  believed ;  that  in  their  ex- 

|9M>  Mdi  grants  made  the  more  violent 

y "j*  ptactcdiag  against  the  subject,  to 

S^f^  ^  jmtice,  and  offence  of  many. 

2"^'"y*  lord  Coke  (3  Inst.  187,)  <  such 

VnaeoKoders  worthy  of  severe  punish- 

IB.-*  ad  to  "  these  hunters  for  blood"  he 

mm  Ijm  esdamation  of  31icah,  •'  Thev  all 

Mnil  Ar  blood,  and  every  man  huntetb  his 

Wbtidaih."  [Our  translation  says,  with  a 

'ihftecBse  of  the  Queen  against  Read,  11 
Ai  Itf,  h  was  held  that  a  crime  that  shakes 
l%bi  (see  l  Hawk.  ch.  fi,)  as  profaoencss 

■  At  itage>  [u  to  this,  see  stat.  3  Jac.  1,  c. 

a  fa.  is  indictable ;  but  writinjgf  an  obscene 
■  aoi  indictable  ;  but  punishable  only  in 
kipnual  court. 

Kiaie  of  the  Queen  v.  Read  (Fortesc.  98,) 
Misadictment  for  printing:  a  lascivious  and 
ftnBittel, enUtlpd, «« The  Fifteen  Plagues  of 
AHfcibead."  The  defendant  was  tried  be- 
kM  chief  justice  Holt,  and  convicted  :  and 
n  notion  io  arrest  of  judgment,  it  appears, 

■  jo'l^^roent  was  given  by  the  whole  court 
ribedetefjditnt.  And  by  Holt,  C.  J.  '*  There 
iceeMa&tical  courts:  why  may  notth'uibe 
■nhcd  there  'f  If  we  have  no  precedent  we 
loot  punish.  Shew  me  any  precedent.'' 
«rU,  J^  *•  This  is  for  printing  bawdy  stuff,  , 
It  reflects  on  no  person  :  and  a  libf  I  utu:;t  ha  I 
unit  some  particular  pei'son  or  iic-rsons,  or 
kiofl  die  government.  It  is  stuff  not  fit  to 
Bratjuoed  publicly.  If  there  is  no  remedy 
the  Spiritual  court,  it  dues  not  follow  there 
M  b«  a  remedy  here.  There  is  no  law  to 
aiih  it :  I  wiih  there  were  ;  but  we  cannot 
^  law.  It  indeed  tends  to  the  corruption 
|Md  manners,  but  that  is  not  sufficient  for  us 
piMh.  As  to  the  case  of  sir  Charles  Setllcy, 
■V  was  something  more  in  that  case  than 
■■ii^  bis  naked  body  in  the  balcony ;  lor 

■  tMe  was  tfvod  vi  et  arm'u  he  pisseil  down  ' 

a  Ike  people's  heads."  And  he  cited  lady 
ek's  case,  which  was  in  llie  Star-cham- 
<^*bcre  tfae^  "  quashed  the  indictment  be- 
"^  ■"  lor  Batters  of  bawdry."    Holt. 


159]             1  GEORGE  U.  Case  of  Edmund  CurlL 

dliogr,  wliere  it  it  reduced  to  writings,  or  in  Sedlej's'caie,  who  only  expowd  bimtdf 

print.  people  then  present,  [nalced,]  who  might 

Chief  Justice  Roymond.    I  think  this  is  a  whether  they  would  look  upon  him  ot 

case  of  Tery  great  consequence  ;  tliough,  if  it  whereas  this  book  goes  all  over  the  kin( 

was  not  for  the  case  of  tlie  Queen  v.  Read,  1  Drunkenness  and  swearing  were  panishi 

should  make  no  great  difficulty  in  it     Cer-  tlie   Spiritual  Court,  before  the  Acts  ' 

tainly  the  Spiritual  Court  has  nothing  to  do  made  them  temporal  ofieoces,  and  in  ' 

with  it,  if  in  writing:    And  if  it  reflects  on  re-  the  jurisdiction  of  the  Spiritual  Court  is  \ 

ligioo,  virtue,  or  morality ;  if  it  teodsto  disturb  Probyn^  J.  inclined  this  to  be  punii 

the  civil  order  of  societv,  I  tliink  it  tB  a  tcm-  at  common  law,  as  an  otfeoce  against  the  | 

poral  ofience.    I  do  not  think  Ubellus  is  always  intending  to  weaken  the  bonds  of  civil  so 

to  be  taken  as  a  technical  word.    Would  not  virtue,  and  morality. 

Trover  lie  *«  de  quodam  libello"  iutitulat  the  «„. .. .  .,_  ^  ^^    -  ^^^^.  ^«.^„^ 

Fartetcue^  J.     1  own  this  is  a  great    of 


^^uT^aI  Z^Z^iZiSuZZr^  ^^^  Generd  and  my^lf.  'But  Curft  not 

irression.     At  common  law,  druokenness,  or  :^^  «*.„«  j^i  ^^  •    .:„  »  <.^«    :  *.  j^i. 

Kg  and  .wearing.  we4  not  puniahabte,  '^^f^f^^^Z^Zli ^^^^^ 

andyet  IdonotftodtheSpiri.«a|  Coort  look  LlS? SaSTfcm  bU^o^^ :Su5 

nouce  of  ihem.    Tbui ..  but  a  general  iohcita.  ^^      .^^  ^j          ^           ^ 

t.on  of  chaaUty,  and  not  indictable.    L*dyPur.  «  two  or  three  aaya.  they  ga»e  h  a«  then 

beck's  case  was  for  procnriDir  men  and  women  _;_,-.^  „„:„:»„    'AL,  .kL  1..  .  71— Zl 

to  meet  at  her  bous^.  and  blld  not  indictable.  S™*'"  X  ^.^H  ft  J«  „Ui^  ?K^J^ 

icular  facte  to  make  feu-^^I^' 'f^^P^.i*-'^ 


MMIIIIV40  n,  m  WDicn  were  is  noiuinir  in  ins  _■    , ,  ,■  „  ,k«™  ^..  »»  n^...:..  .«  *-ii. 

*«  i-i7i  •       ^ L  •    I      -J    »    went  upon,  tnere  was  no  occasion  to  talk  I 

case.    A  libel  IB  a  technical  word  at  common  n^„.,,riJ, ^!c  *il    i-     i. 

i._ .  —J  I  _..^  ._-  (k^  ^..  «f  >k<.  rk..^«  Court's  being  cenior  morum  of  the  king' 

•^    •    Bij!JS5.r.i.  L^,  .Wo^r«  i^^-    They  said,  if  Read's  case  was  to! 

Charts  SedleySi^cnhere  was  a  for«^  of  tt? '  aSN^^S  S.S  wi^'iSS 

tbrowinc  out  boldes  upon  the  people's  beads.  ^  ;„  jg^  ^^^^^^y^  ^  ^^  ^^„  j,^^^ 

HtffnoldSy  J.     It  is  much  to  be  lamented, 
if  this  is  not  punishable :  1  agree  there  may  be        This  Edmund  Curlt  stood  in  the  ptik 

many  instances,  where  acts  of  immorality  are  Charing- Cross,  but  was  not  pelted,  or  usi 

of  spiritual  cognizance  only ;    but  then  those  for  being  an  artful,  cunuiog  (though  w; 

are  particular  acts,  where  the  prosecution  is  fellow,  he  had  contrivinl  to  have  printed  | 

pro  salute  anima  of  the  offender,  and  not  where  dispersed  all  about  Charing- Cross,  teltin 

they  are  of  a  general  immoral  tendency ;  which  people,  lie  siood  there  for  vindicating  Um 

1  take  to  be  a  reasonable  distinction.    Read's  mory  uf  queen  Anne ;  which  had  such  i 

case  is  indeed  a  case  in  point :    but  I  confess  V  feet  on   the    mob,  that  it  would  have 

should  not  have  been  of  that  opinion.     Libelius  dangerous     even    to    have    spoken    a. 

docs  not  ex  vi  terminU  import  defamation,  but  him :  and  when  lie  was  taken  down  out 

is  to  be  governed  by  the  epithet,  which  is  added  pillory,  the  mob  carried  him  off,  as  it  vr 

to  it.    This  is  suituy  worse  than  sir  Charles  triumph,  to  a  neighbouring  tavern. 


1 


Trial  if  WmamHaUt. 


A.  D.  1728. 


[let 


I.  The  Trial  of  William  Hal^s,  for  forging*  a  Promissory 

Note  for  6,400/.  in  the  Name  of  Thomas  Gibson,  esq.  and 

PartnerSit  ^^^  f^r  publishing  the  same  as  a  true  one,  knowing 

it  to  be  false  and  counterfeit,  at  the  Session  of  the  Peace, 

ad  Oyer  and  Terminer,  for  the  City  of  London,  held  at  the 

Old  Bailey,  before  Mr.  Justice  Page, J  and  Mr.  Baron  Carter: 

SG£OUG£  II.  A.  D.    1728. 

December  9,  1728. 

ftw.  OyEZ  !  Oye« !  Oyez  !  All  manner 
vnin,lhitbaTe  any  thing  to  do  at  this 
••rf  Oyer  and  Terminer,  holden  for  the 
ft«LBBd<m,Bnd  eaol-dclnery  of  Ncwgrate, 
n>ftrlhf!city  of  London,  and  county  of 
dnwnear,  and  giye  your  attend - 
^n\  Yon  good  mm  of  the  ciry  of 
^--^MBmoDed  to  appear  here  thisdoj', 
•J  "e  trill  between  our  aovereign  lord  the 
Wl  vd  William  Hales,  answer  to  your 
piia  and  peril  that  shall  coiue 


Scynoari  Samael   Cranmer,    &c. 


toSSiUl^"^^*-   William  Hales,  look 
f?|Meagw.    Hamnel  Cranmnr 

•9**9»«-  My  loni,  I  have  a  paper  deli- 

There  are  three  worthy  persons 

I)  We  desire  may  be  set  aside. 

'^Hf'  Yoii  know  what  the  law  isjl :  if 

r •  ""»*)•  consent  they  should  he  with- 
■■^  W  well. 

■^Icyflcj.    Wc  know  there  Are  enou^'i, 

jtt  jMrr.  Richard  Knollys. 

g-  S^V"*"-  He  is  related  to  Mr.  Gibson. 

wal^«''ifccr.  Prove  it. 

■jwa  C«rkr.    Pray,  how  is  Mr.  Gibson 

fcrj.  Diinili    n  jg  for  ^  notg  ^p  j^Ir,  ^jij,. 


kiaHLf^^i'    '  ^^^^^  recommend  it  to  Mr. 
*womey.    IwpuH  have  this  trial  without  any 

■hi  ^.^"**V*^-  ^^-  ^^'  ^^'  "»  7'  ^-  J  «««. 
"^uw  iwowing  cases  relative  to  the  traiis- 

■^  **)'<i»0«ve  rise  to  tliis  Trial. 

«lr  J  %!."'•  **»•  ^^^^  »n  short  hand  hv 

•  Z.  V  ■  ^J^^'-tWner  Edition,        " 

JAM^'.r'*"'-  "'"'t.  vol.7,  p.  691;    and 

2^^*^ Lues  cf  Pope,  and  of  Havajje,  as 


colour  of  unfairness  whatsoever ;  and  as  Mr\ 
Gibson  is  concerned,  if  he  be  really  a- kin,  I 
would  advise  Mr.  Attorney  to  v\aive  him. 

Attomcif  General^  (sir  Philip  Yorke.)  My 
lord,  1  am  sure  it  is  our  desire  that  this  trial 
should  proceed  with  all  the  fairness  iraaj^ina* 
ble ;  therefore,  without  entering  into  the  ques* 
tion  how  fur  Mr.  Gihsou  is  concerned,  or,  if  h« 
is,  what  consequence  thai  may  have,  1  waive 
this  gentleman. 

Then  the  twelve  Jnrors,  who  were  sworn, 
were  counted,  and  their  names  were  as  fol- 
low, viz. 


Samuel  Cranmer, 
William  Howard, 
Thomas  Swayne, 
Thomas  Port, 
Ralph  KnoY, 
Cornelius  Alason, 


.  A.  11  \u:^  ?r'  *"**»  »o  T^o"™  ''^ncs,  (book  R, 
i  1^  i«l!'T''  *^fy  a^"^  niy  'Of**  justice 
^iS^      ^^"^  ^^^  ^^^^"^  ^'"^^'"  ^"■ 

^,*ii^'*e  the  celebrated  *  Letter  con- 
>jy*^^Warrants,  Seizure  of  Papers,' 


•  ■*■  aicribed  to  lord  chancollf»r 
to  the  first  lord  Asliburton. 


John  Pott, 
RichanI  Chauncy, 
Jame^  Coulter, 
Harvey  S|)ragge, 
Joseph  Jackson, 
Robert  Knaplock. 

CL  of  Arr.  Crier,  make  proclacnatioo. 
Crier.  If  any  one  can  inform,  &c. 
ChofArr.  opened  the  Indictment,  which  is 
as  follows,  viz. 

**  London,  ».  Juratori^  pro  Domino  Rega 
super  sacranientum  suuui  pra>sentant,  quod 
Willielmus  Hales,  nu|K*r  de  London,  Aurifa- 
bcr,  Anglic^  Goldtmith^  existens  persona  ma- 
lorum  nomiuis  et  famiB,  ac  ronversationis  in* 
lionestflc,  ac  injust^  et  fraudulentf-r  niachinans 
et  intendens  quendam  Tlioniam  Gibson,  uec- 
non  quosdam  Johaunem  Jacob  et  Rohiertum 
Jaconib,  participes  ejuKdcm  ThomsB  Gibson, 
ac  diversos  alios  dicti  homini  Reyfis  nunc  ligeos 
ct  suliditos,  de  iiisfrnis  deuariorum  summis 
fraudulenter  et  iniqub  decipere  et  def'niudere, 
septimo  die  Septeuibris,  anno  regni  Domini 
Georp^ii  Secundi,  nunc  Rep^ig  Matj^i.&e  Britan- 
niee,  &c.  sccundo,  apud  Loudon  pnedict,  scili- 
cet, in  nnrochia  Ss^nrti  Dunstani  in  Occident', 
in  waniri  de  Farringdon  extra,  vi  et  nriiiis,  6cc. 
tiilso,  fraiiduleiitcr,  et  decrptiv^  i'abricavit  et 
rontrafin;,  ft  fiibriciri  rt  coutralifri  r ausavit, 
quoddam  scriptum  in  verbis  et  iiguris  sequent!- 
bus,  videlicet, 

"  Aiifiu$t  27, 172R. 

"  I  promise  to  pay  to  Geornfe  Watson,  esq, 
or  hearer,  the  sum  of  six  llioitsand  four  hun- 
dred p(»unds,  at  tlem-.ind,  the  like  value  recciv-* 
cd.     For  myself  and  pai  titers, 

**  Tno.  GmscLN." 

«*  £. «,  100. 


31 


163]  2  GEOllGE  II. 

ad  frmwe  (lamniim  pncfat'  Tlioroft  GibMn,  et 
pnctJicl'  Joliannis  Jacob  et  Uoberti  Jacomb, 
particip^itn  ejusdem  TliumiE  Gibson,  in  malum 
excmplum  omnium  aliorum  in  hujusmodi  casu 
delinqucntium,  ac  contra  pacem  dicti  Domini 
Itesfis,  coron'  et  di^nitat*  suas,  &c.  £t  jura- 
tores  pnsdicti  super  sacrainentum  suum  prsc- 
dictum  ulterius  praesentant, quod  pr«dictus  WiK 
lielmus  Hales  neqiiiter  et  deceptive  macbinans 
et  intcndens  prst'at*  Thomam  Gibson,  necnon 
pncdict*  Johannem  Jacob  ct  Robertnni  Jacomb, 
participes  ejusdcni  Tbomse,  ac  diversos  alios 
subditos  et  lifi^eos  dicti  I>f»mini  Re^  nunc,  de 
ma^nis  dcnanornm  sumrois  fraudulentcr  et  ini- 

aul*  decipere  et  defraudare,  postea,  scilicet  pne« 
icto  septimo  die  l^ptcmbris,  anno  secundo  su- 
pradicio,  apud  Lon4lon  pnedicl',  scilicet,  in 
parocliia  et  warda  praedict',  vi  et  armis,  &c. 
<|uodilam  scriptum  falso  fabricaturo  et  coutra- 
fiictum  in  verbis  et  figuris  sequentibus,  Tide- 
licet, 

«  August  27,  1728. 
**  I  promise  to  pay  to  George  Watson,  esq. 
or  bearer,  the  sum  of  six  thousand  four  hun- 
dred pmmds,  at  demand,  the  like  value  receiv- 
ed.   For  myself  and  partners, 

«»  Tho.  Gibson.'* 

j;,  6,400. 


Trial  of  tVaiiamHaleSt 


c 


scienter,  illicit^,  et  fraudulenter  produxit  et 
piiblicavit,  et  product  ct  publicari  causa vit, 
tanquam  verum  et  legitimum  scriptum,  (dicto 
Willielmo  Hales  adtunc  et  ibidem  beu^  sciente 
scriptum  ult'  mentionat'  per  ipsum  Willielmum 
Hales  sic  ut  preef'ertur  product'  et  publicat', 
falso  fabricat'  et  contrafact*  fniasc)  ad  grave 
damnum  pncfat'  Thorns  Gibson,  ct  praedict' 
Johannis  Jacob  ct  lloberti  Jacomb,  participum 
igusdcin  Thomtc,  in  malum  exemplum  omnium 
aliorum  in  hujusmodi  casu  delinquenlium,  ac 
contra  pacem  dicti  Domini  Regis  nunc,  coron' 
•t  dignitat'  suas,  &c.  Et  jnratores  praedicti 
super  sacrameutum  suum  nrtcriuit  pnesentant, 
<|uod  prtcdictus  Willlelmus  Hales  niachinaus  et 
fraudulenter  inteudens  prcpfat'  Thomam  Gilison, 
occnon  precdict'  Johannem  Jacob  et  Robertum 
Jacomb,  participes  ejusdem  Tliomie  Gibson, 
ac  diversos  alios  dicti  Domini  Regis  nunc 
•ubditos,  de  magnis  denariorum  sunimis  frau- 
dulenter et  iniqu^  decipere  et  defraudare, 
preedicto  septrmo  dieSeptembris,  anno  secundo 
•upradirto,  apud  London  predict',  scilicet,  in 
parocbid  et  wardft  pnedict',  vi  et  armis,  &c. 
ialso,  fraudulenter,  et  deceptive  fabricavit  et 
contrafecit,  et  fabricari  et  contrafieri  causa  vit, 
quoddam  scriptum  gerens  tfat'  vicesimo  sep- 
timo die  Augusti,  anno  Domini  millesimo  sep- 
tingentesimo  vicesimo  octavo,  in  se  purportans, 
quod  pnedictus  Thomas  Gibson  pro  seipso  et 
participibus  promisit  solvere  Geor^^io  Watson, 
arm',  aut  latori,  summam  sex  mille  quadrin- 
gent'  librarum,  super  demand',  consimili  valore 
recept'  ad  grave  damnum  pnefat'  Thomas 
Gibson,  et  predict'  Johannis  Jacob  ct  Robcrti 
Jacomb,  participum  ejusdem  Thomee  Gibson, 
in  malum  exemplum  omnium  aliorum  in  hu- 
jiitmodi  otia  deuo^aeotiuiDy  ac  contra  pacem 


dicti  I>omini  Regis,  coron'  et  dignitat' 
&c.  Et  iuratores  prseiHcti  super  sacram( 
suum  ulterias  prsesentant,  quod  pmM^ 
Willielmos  Hales  nequiter  et  deceptive  vdm^^ 
nans  et  intendens  prsfat'  Thomam  GibsOB^ 
prsedict' Johannem  Jacob  et  Roberium  JaooiP 
participes  ejusdem  Thomoe  Gibson,  ac  divei^ 
alios  subditos  dicti  Domini  R^s  nane,  ftufl 
dulenter  et  injust^  decipere  et  defrandmd 
magnis  denanorum  summis,  postea,  feilte 
pruraicto  septimo  die  Septenbris,  anno  aecadfl 
supradicto,  apnd  London  pnedict',  adliceti  i 
parochi^  et  warda  pnedict',  vi  et  armis,  ta 
quoddam  scriptum  falso  fabricat'  et  conlrafad' 
gerens  dat'  vicesimo  septimo  die  Anguiti,  hh 
Domini  millesimo  septingentesimo  vienM 
octavo,  in  ae  purportans,  qaod  predictos  TW 
mas  Gibson  pro]  seipso  et  participiboa  proairi 
solvere  Gcorgio  Watson,  Ann ,  aat  latffl 
summam  sex  mille  ^uadringent'  librarM 
super  tfemand',  consimili  valore  recept',ad6aM 
illicit^, -et  fraudulenter  produxit  et  publioaril^l 
produci  et  publicari  causavit,  tanquam  TcnM 
et  legilimum  scriptum,  (prefato  Willielai 
Hales  adtunc  et  ibidem  bene  sciente  tcriplHj 
ull'  mentionat',  per  ipsum.Willielmum  HaMt  d 
ut  procfertur  product'  et  publicat',  falso  fabrioil 
ft  contrafact'  fuisse)  ad  grave  damnum  praM 
Thomee  Gibson,  et  prsefat'  Johannis  Jam  ■ 
Roberti  Jacomb,  participum  ipsius  ThdM 
Gibson,  in  malum  et  pemiciosum  exemphl 
omnium  aliorum  in  consimili  casu  drlinqnia 
tium,  ac  contra  pacem  dicti  Domini  K^ 
nunc,  coron'  ct  dignitat*  suas,"  &c. 


N.  B.    This  Indictment  vras  found 
the  commission  of  Oyer  and  Termioer,  wk 
not  U|K)n  the  gaol  delivery. 

CI.  of  Arr,  Upon  this  indictment  tha  4e 
fendant  hath  been  arraigned  and  pleaded  Ni 
Guilty ;  and  for  his  trial  he  puts  himself  opM 
God  and  his  country,  ivhich  country  yoniM^ 

Your  charge  is  to  inquire,  &c. 

Mr.  Strange.  May  it  please  your  lordship 
and  you  gentlemen  of  the  jury  ;  this  is  an  in 
dictment  against  William  Hales,  of  LondM 
The  indictment  sets  forth,  that  he  being  < 
person  of  ill  fame  and  reputation,  and  intendin| 
to  deceive  and  defraud  Thomas  Gibson,  Join 
Jacob,  Robert  Jacomb,  and  divers  others,  did 
on  the  7th  of  September,  forge  and  coantcrftil 
and  caused  to  be  forged  and  counterfeitcNl,  i 
certain  note,  viz.  <*  August  27,  1728.  I  pn 
mise  to  pay,"  Sec,  This  is  laid  to  be  to  tb 
great  damage  of  the  said  Thomas  Gilison,  Ba 
and  to  the  e?il  example  of  others  in  like  cai 
offending,  against  his  majesty's  peace,  &c.  1 
sets  forth,  tliat,  from  the  same  evil  intentioai 
he  did  produce  and  publish,  and  caused  to  h 
produced  and  pnblished,  a  certain  note  follow 
mg,  viz.  <*  August  27, 172B,  I  promise  to  pay,' 
&c.  That  he  published  this  as  a  true  aw 
lawful  writing,  knowing  the  same  to  be  hha 
forged,  and  counterfeit,  it  sets  forth,  tlnit  k 
forged  and  counterfeited,  and  caused  to  tn 
forged  and  counterfeited^  a  certain  wiiiim 


for  a  Misdemeanor. 

■pHl  f7|  17  S8,  piirportins^  that  the 
I  Ihomu  GUmoo,  for  himstflf  and 
,  pmiMed  to  pay  Georf^e  Watson,  or 
Moot  GeDtleneo,  the  indictment  sets 
In  on  the  same  7tli  of  September, 
dly,tbe  said  William  Hales  did  pro- 
d  ctoMd  to  be  produced,  a  writini^, 
fiipted  that  the  said  Tliomas  Gibson 
MMd  to  pay  Geunre  W^atson,  or 
,§0X>1,  and  published  this,  knowing  it 
iifid  at  the  same  time.  And  this  is 
i  to  the  great  damajire  of  the  said 
»Gib«Hi,  &c.  and  to  the  evil  example 
icn  io  like  case  oflTendini;-.  To  this 
iithe  bath  pleaded  Not  Guilty.  But 
live  the  fact,  it  becomes  your  duty  to 
bin  thereof. 

tOL  May  it  please  your  lordship,  and 
iemen  of  the  jury ;  1  am  of  eouoael  in 
for  the  king.  The  Charge  against 
^t  Mr.  William  Hales,  is  for  forg- 
e  in  llie  name  of  Mr.  Gibson,  pavable 
t  Watson,  esq.  or  bearer,  for  no  less  a 
6,400/.  and  publishing  this  note  as  a 
knowing  it  to  be  false  and  counter- 
though  the  fact  is  laid  different  ways 
lictment,  yet  it  is  upon  one  and  the 
^f  and  the  difference  consists  only  in 
»f  alleging  it. 

eotlemeu,  is  the  first  case  of  the  most 
lary  scene  of  forgery  that  hath  come 
unioation  in  this  place,  committed  in 
anoer,  and  attended  with  such  cir- 
ei ,  as  make  it  necessary  to  be  prose- 
b  the  greatest  weight  and  solemnity, 
imple  and  terror  to  others.  AW  kinds 
'  are  crimes  of  a  most  pernicious  oa- 
bey  tend  to  weaken  and  destroy  that 
commerce  which  ought  to  he  main- 
oDgst  men :  but  forgery  in  the  case 
able  notes,  which  have  a  particular 
giren  to  them  hy  act  of  parliament, 
priTate  credit  is  greatly  assistetl,  and 
ied  no,  is  one  of  the  most  dangerous  ; 
t  should  prevail,  the  consequences, 
ot  eiisy  to  be  foreseen,  would  certainly 
ive  and  destructive.  8uch  is  the  na- 
le  offence  whereof  the  prisoner  stands 
bot  howsoever  heinous  that  may  he, 
will  depend  entirely  u{>on  the  evidence 
i. 

men,  the  advantage  taken  to  commit 
ery  was  from  an  act  of  kindness  and 
one  to  the  defendant.  He  some  time 
tiled  with  one  Mr.  Booth,  book-keeper 
ibsoo,  to  accommodate  him  with  two 
r  letters  franked  by  Mr.  Gibson,  in 
be  pretended)  to  send  news  into  the 
a  practice  which  1  fear  is  too  com- 
t  1  hope  this  instance  will  have  some 
nake  it  less  frequent.  It  will  appear 
rom  several  circumstances,  that  the 
ucstiqn  was  made  on  one  of  these 
K,  gentlemen,  it  is  a  promissory  note, 
,  For  myself  and  partners,  lliomas 
The  body  of  the  note  ia  all  of  one 


A.D.  1728.  [166 

hand- writing,  not  pretended  to  be  Mr.  Gilison's* 
When  we  come  to  the  subscription,  there  is  a 
rasurc  at  the  end  of  the  word  *  for,'  which, 
upon  holding  the  peper  against  the  light  in 
plainly  to  be  seen.  The  HiannerofMr.  Gib- 
son's writing  being, pretty  wide  and  loMe,  tlie 
letter  o  in  the  word  *  for  appears  to  have  been 
crowded  between  the  other  two  letters  /  and 
r,  and  is  of  a  remarkably  different  cnarac* 
ter  and  fresher  ink  than  the  others.  From 
hence  the  manner  of  making  the  forgery  seeine 
to  have  been,  by  rasing  out  the  two  e's  at  the 
end  of  the  word  *  free,'  or  at  lea&t  the  greatest 
part  of  them,  and  inserting  an  o  in  the  manner 
1  have  mentioned,  and  then  ailding  in  the  same 
line,  aHer  this  word  thus  made  to  be  '  for,' 
these  other  words,  *  Myself  and  partners ;' 
which  standing  a  little  above  the  name,  Tho. 
Gil»son,  serve  as  a  proyier  suliscription  to  this 
note.  It  will  appear  likewise,  that  the  stroke 
at  the  beginning  of  the  m  in  the  word  '  my'  ia 
of  the  older  kind  oi  ink,  and  probably  was  at  first 
fiartof  one  of  thee's  in  the  word  '  free.'  There 
is  something  observable  in  the  figure  and  ap- 
pearance of  the  paper  itself:  the  ohl  foidingy 
which  is  most  worn,  answers  to  that  which  pro* 
bably  might  have  been  the  fold  of  a  cover  of  a 
letter,  and  the  pa|ier  is  torn  off  at  one  side  and 
at  the  top. 

This,  gentlemen,  being  the  nature  of  tlie 
writing,  and  the  manner  in  which  it  was  trans- 
formed from  the  direction  of  a  letter  to  a  iiote 
of  this  value,  we  shall,  in  the  next  place,  lar 
before  you  the  use  which  was  matle  of  it.  And, 
gentlemen,  tlie  time  pitched  upon  for  this  pur- 
pose will  lie  material  for  your  considerattoD. 
Mr.  Gib&oo  was  gone  to  Bath,  and  it  was 
ihougl.t  proper  to  date  the  note  the  day  U-fore 
he  went.  No  u^e  was  made  of  it  till  some  time 
afler  he  m  as  gone,  tliat  there  might  he  no  r<Him 
for  applying  to  tlie  p«  nnn  himself.  The  day, 
and  lime  oljhe  day,  which  were  choMru  to  out 
it  off,  were  Saturday  at  night ;  when  orobahty 
there  wou'd  lie  no  ^ipfiortumly  of  riiaain:;  in- 
qtiiries  till  tli«  Monday  m'^rniiig  loll  owing,  :ind 
consequently  a  wh'4e  d:iy  luigUi  be  gairK-d. 
This  being 'the  opiKirt'iiniy  r#'s#iKi'd  up«>n,  it 
will  appear  that  cu  Kaiarday  tlie  7ih  of  .Sep- 
tember, Mr.  lUle^  made  u**-  of  an  iii*i/uff»^fi% 
that  hath  confessed  himv-lt  vt  hat*- 1>«*  u  lin** 
in  hy  him,  one  Thomas  ICum*«'y,  a  w/»,'..r  ?•*>- 
low  bred  to  the  sea,  who  wa«  a»iv>l»n*'  y  u-.'i^r 
his  influence;  told  him  lie  mi; -t  fg'i  w.'  f  tint 
into  the  city,  bid  hiin  pnt  on  a  j.*-t.o.  »-  •**«' 
of  clothes.and  observing  th^t  In-  '.*i;  »  «-*■ 
hat  upon  his  head,  advised  him  "'  ^i*'^  *7'' 
behind  him,  and  gave  him  *  p4.-.  •<»-  ' 
make  him  appear  still  Morelk*-  ^  rjan  ••  ''•• 


ness,  Mr.    Hales,    as  th^    w^« 
Strand,  bought  biin  a  ifr^\^'  ^^ 
case.     Tlience  becaimt-:    .-*<**-'"" 
and  bought  him  a  dark  y-  *'l 
it  on,  and  said,  it  ^ 


•». 


equipped,  he 
in  8hire-laae; 
Bumsey  net 
employed,  • 


teok  hi*. 


■/i'X  * 


167]  S  GEORGE  11. 

Without  the  porter*!  sayioflT  one  word,  Hftles 
asked,  If  be  did  not  want  Ruqasey  P  The  por* 
ter  answered,  Yes ;  and  pmduoed  a  letter  di- 
rected to  Rumsey,  which  Mr.  Hales  took,  and 
readily  found  inclosed  in  it  tlris  note  for  6,400/. 
fmyalile  to  George  Watson  or  bearer.    In  the 
letter  were   two    names  written    with  sums 
aq[ain5;t  them  thus,  lady  Harriot  Elliot  4,S00/. 
8ir  John  Hyndc  Cotton  2,100/.  and  under- 
neath, *  payable  to  them  or  hearer.'    These 
names  only  being*  in  the  letter,  Mr.  Hales  took 
upon  him  to  order  Uurasey  to  write  under 
them,  <  James  Morcton,  esq.  or  bearer;*  and 
when  this  was  done,  that  part  of  the  letter  with 
the  names  was  torn  off,  and  nut  into  the  pocket- 
book  (which  bad  been  bou^i^ht  for  tlie  purpose), 
together  with  the  note  for  6,400/.  and  a  Bank- 
note of  20/.  and  two  of  S5/.  each.    Then  the 
|>ri8oner  gave  it  to  Nr.  Rumsey,  with  direc- 
tions to  carry  these  notes  to  the  shop  of  Mr. 
Snow  and  Poltock  without  Temple- bar,  and 
there  take  their  cash -note  payable  to  James 
Moreton,  esq.  or  bearer,  fur  70/.  the  produce  of 
the  Bank-notes ;  and  in  exchangfc  for  this  for^r- 
ed  note,  to  take  one  of  their  notes,  payable  to 
the  lady  Harriot  £lli()t,  or  l>earer,  (or  4,300/. 
and  another  to  sir  John   Hynde  Cotton    or 
bearer,  for  2,100/.    The  prisoner  gave  strict 
instructions  to  Rum^sey,  that,  if  at  Mr.  Snow's 
he  should  lie  asked  where  he  lived,  he  should 
answer,  at  the  upper  end  of  Bond-street;  if  he 
shouUI  he  asked  hij  name,  he  should  say,  Tho- 
mas Fowler,  or  any  other  name  besides  his 
true  name ;  thair  it  was  indifferent  what,  so  it 
was  not  the  right  name.    Rumsey,  thus  in- 
structed, went'  immediatfly  to  the  house'  of 
Mr.  Snow  and  Poltock,  which  Hales  took  care 
to  shew   him.      Mr.  Poltock  took  the  small 
Bank  notes,  and  gave  his  note  for  them  ;  hut 
olisoryinjr  the  appearance  of  the  note  for  6,^00/. 
that  it  was  written  on  a  dirty  scrap  of  pa|>or, 
and  the  difference  of  hand- writings  m  it,  would 
have  notbinof  to  do  with  that.    During  this 
time  Haleti  kept  at  a  little  distance  ;  and  Rum- 
sey relurninff  without  success,  he  directeil  him 
to  go  to  Mr.  Hoare's,  and  (as  he  had  csoncerted 
in  the  former  instance)  to  nay  in  a  small  sum 
of  money  not  exceeding  7o/.  and  take  their  note 
for  it,  and  to  (>xchauire  the  note  of  6,400/.  for 
their  notes.  The  names  of  the  persons  to  whom 
the  notes  were  to  be  made  payalilo  were  then  to 
bech;ui'3:ed ;  forthestrrtlni^eni  wns,to  make  use 
of  the  names  of  i^ersons  that  dealt  at  the  several 
shops,  in  order  to  gain  credit  to  the  transaction. 
Therefore  the  names  of  two  honourable  persons, 
wtl!  known  at  Mr.  Hearers,  wen*  pitched  npon; 
and  the  new  direction  which  the  pri.sonerpfare  to 
J^imsey  was,  to  take  one  of  Mr.  Hoare's  notes 
for  4,300/.  payable  to  Hir  Richard  Grosvenor  or 
bearer;  and  another  tor  2,100/.  pay  aide  to  sir 
John  Hynde  Cotton  or  bearer;    and  there  also 
if  he  was  asked  to  give  in  his  name,  Thomas 
Fowler.     When  it  was  near  dark,  Rumsey 
went  to  Mr.  Hoare V,  and  exactly  pursued  hit 
orders.    Thcv  made  him  oot  A  small  note  for 
the  casli,  and  gave  such  eredit  to  Mr.  Gihsont 
miBe,  as  to  fg;m  bim  Ibe  notes  bf  dtiired,  in  lies 


Trial  of  WiUiam  Hales, 


lu 


of  the  6,400/.  note :  all  wliich  Mr.  Riunt)^  A 
livered  immediately  to  Mr.  Hales,  wlio  ifMj 
for  bim  at  a  fruit-stall  not  far  from  the  sbnp. 

Gentlemen,  Nr.  Hales  beinf:^  now  poiieM 
of  three  notes  of  Mr.  Hoare's,  one  fbr-fOl 
another  for  8,100/.  and  a  third  for  4,S0Of.lbi 
next  part  of  his  scheme  was  to  neffooiataMi 
exchange  them  for  other  notes  from  Mfei 
to  hand,  in  order  to  entangle  the  aflfairkUd 
make  it  difficult  to  trace  out  the  cheat :  Ibem 
fore  liis  next  orders  to  Rumsey  were,  t6anf 
the  note  for  4,300/.  payable  to  sir  Rfrfaai 
Grcsvenor  or  bearer,  to  5lr.  Brassey 's  spd  flp 
changfe  it  for  smaller  notes.  RunnseJ^  ml 
thither  that  night,  and  took  four  smaller  MM 
of  Mr.  Brassey's,  in  lieu  of  Mr.  UoaraVw 
two  of  1,000/.  each,  one  of  1,200/.  and  ifi- 
ther  of  J, 100/.  But  though  these  notes  4 
Mr.  Brassey's  were  given  out  on  feSativdqf 
Sept.  7th  at  night,  they  were  made  to  hM 
date  on  Mouda^r  the  9tb;  because,  h  brfjg 
late  in  the  evening,  the  cash-book  was  mm 
up  for  that  day.  These  four  new  notes  Mr 
Rumsey  delivered  to  Mr.  Hales,  who  wailnl 
for  him  again  at  a  very  small  distanoe  fipsii 
Mr.  Brassey's -shop.  • 

The  next  part  of  the  scheme  was  to  chasp 
these  notes  into  negocialde  securities  eqnil  ll 
cash,  in  which  there  was  probably  a  dsdUl 
view  ;  partly  to  intricate  the  affair  still  ftitMi 
and  partly  for  the  greater  convenience  of  pa^ 
rying  off  the  fruits  of  their  iniquity,  wbfi 
that  should  become  necessary:   therefora  IM 

Itrisoner  sent  Rumsey  to  Mr.  John  Hah^  ■ 
iroker  in  Exchange- alley,  and  directed  liisili 
acquaint  him,  that  he  came  from  Mr.  SsMpI 
Palmer,  in  Mansel-street,  Goodnian*s-fisNb| 
with  orders  to  buy  South-Sea  and  India  bsiii 
to  the  value  of  3,400/.  against  Monday  mocBi 
ing  following. 

Thus  the  matter  rested  till  Monday  tho  OH 
of  Sci»tember :  but  on  the  Sunday  the  prisoom 
was  liot  wanting  in  making  his  preparatioosi 
He  then  appointed  one  Roliert  Hall,  his  tayisi^ 
to  meet  him  at  Lloyd's  coffee- hoube  in  Lea- 
bard-street,  at  eiuht  o'clock  the  next  momiag, 
without  leitint;  him  into  the  secret  of  what  M 
was  to  i\o.  Hall  went  accordinsrly,  ami  tbcff 
foimd  one  Samuel  Lee  waiting  for  Mr.  Hales  | 
nn  instrument  made  use  of  by  the  prisoner  ifl 
another  transaction,  which  wdl  one  day  appcil 
as  rank  a  forgery  as  this.  About  niue  Halsi 
came,  and  p;ave  to  Hall  Mr.  Brassey's  note 
fur  1,200/.  directing  him  at  the  i^ametime  Iq 
go  and  receive  050/.  in  guineas,  and  have  k 
indorseil  off.  He  told  Hall,  that  if  he  was 
asked,  he  should  tell  them  he  lived  in  the 
Hav-market,  or  any  where  else  except  tbs 
reaf  place  of  his  dwelling,  and  that  his  uams 
was  John  Roberts.  So  here  is  anniher  shan 
name  and  place  of  abode.  He  obeyed  thess 
orders,  received  the  money,  nut  in  gold,  but  m 
three  Bank-notes;  and  when  the  persons  io 
Mr.  Brassey's  shop  enquired  his  name,  bo 
told  them  John  Roberts.  Whilst  Hall  was  m 
tbo  shop,  he  observed  that  Mr.  Hakes  waUnd 
by;  00  joiloas  was  be  of  bis  agents,  t»r  il 


for  a  Misdemeanor. 

vifilaat  to  see  how  things  succeeded, 
stif  ered  the  Baok-notes,  together  with 
iHev*s  note,  on  which  the  650/.  was 
I  ofll,  At  Ltoyd'g  cofTee-honte ;  and  af- 
•  met  him  again  at  Ja  new  ay's  cofTee- 
Ib  ComhUI.  There  llales  retarned 
mk- notes  to  Hall,  and  ordered  him  to 
m  Bank,  and  tltere  recei?e  the  money 
mi  in  goM.  Mr.  Hales  was  still  so 
or  iflBpatient,  that  whilst  Hall  was  at 
ik  icoeiving  tlie  moneyt  he  took  occa- 
BMDe  in  there  a|>oo  pretence  of  cHane* 
;wiea,  and  taking  no  notice  of  Hall, 
my ;  after  which  Hall  went  with  Itim 
rerot  and  paid  him  the  G!>0/.  which  he 
I  at  tb«  Bank. 

emen,  thus  far  the  design  succeeded 
9ere  are  several  good  notes  obtained, 
»e  cash  got,  without  discovery:  but 
ision  of  that  will  arise  out  of  the  part 
ftmuey  was  to  act  on  the  Monday 


A.D.  1728. 


[170 


ly  yon  obsenre  there  are  two  notes 
Iloare's  behind,  whereof  no  accmint 
B  yet  g^iven,  viz.  that  of  70/.  and  that 
I/,  payable  to  sir  John  Hymie  Cotton, 
f  nrfaich  Mr.  Rumscy  was  employed. 
appear,  tliat  Mr.  Hales  krpt  Rumscy 
Jlj  with  him,  and  lodged  him  in  his 
I  Saturday  and  Sunday  ;  and  on  Mon* 
nnngt  when  he  went  into  the  city, 
Rurosey  with  him,  took  care  to  shew 
'.  Alderman  llankey's  shop,  and  dt- 
lim  to  exchange  tfiese  two  notes  for 
d  2,100/.  for  Mr.  Hankey's  notes. 
'  went  to  the  shop,  and  they  iiaving  no 
f  about  exchanging  Mr.  Ht^arc's  notes, 
I  ti.em,  and  gave  him  two  of  thnr  own, 
1,100/.  and  another  for  1,050/.  both 
to  ^iainuel  Pahncr  or  bearer ;  and  the 
ig  QOl.  was  paid  in  money.     As  to  tlie 

1,100/.  the  whole  was  rcceiveil  upon 
Ir.  Aulerman  Hankey's  the  same  day, 
•vtn  wiio  called  himself  Samuel  Lane, 
einen,  the  next  part  of  the  transaction 
to  tlie  South  Sea  and  India  bonds  for 
ivhicli  hail  been  ordered  to  be  procured 
s  the  broker.  On  Monday  mornint>^ 
-  received  the  money  of  Mr.  Hales, 
eclions  to  carry  it  to  ilaU,  and  pay  fur 
nnusi.      WliiUt  Uuiuiiey  was  gone  to 

this,  it  appears  that  Mr.  Hales  was 
is  occasion  also  uneasy  aiirl  impntient, 

Idiriisey  st.Lye<l  too  long,  and  sent  a 
or  hi'ii  to  Huls's  ottice,  by  the  name 
mas  Fowler ;  and  that  Uumsey  an- 
to  that  name,  and  went  along  with  the 

emen,  we  shall  next  produce  to  you 
not  made  U[t  by  Mr.  Hals  or  Mr.  (-oie 
ler,  which  will  appear  to  have  licen 
ut  in  these  feij;;ued  names,  Samuel 
esq.  per  Thomas  Fowkr;  whereas 
I  persons  had  any  thing  to  do  in  the 
ion,  bnt  the  whole  was  negociated  by 
■d  Ramsey.  Aud  it  will  oe  proved, 
eaever  the  privouer  sent  Rumsey  apou 


any  of  these  errands,  be  considered  the  quca- 
tions  which  were  likely  to  be  asked,  and  gave 
him  instructions  how  to  make  proper  answers, 
and  some  of  them  in  writing. 

While  these  things  were  transacting,  the 
accident  happened  that  led  to  the  disoovery. 
About  eleven  o'clock  on  Monday  morning,  Mr. 
Humphreys,  a  servautof  Mr.  Hoareandhia 
partners,  who  carries  out  notes  and  receivee 
money  abroad,  carried  the  note  for  6,400/.  to 
Mr.  Gibson's,  and,  Mr.  Phillips  the  cash- 
keeper  being  abroad,  left  it  with  Mr.  Cram* 
lington,  another  of  the  servants,  with  directiona 
to  pay  the  money  upon  it  to  Mr.  Bromfield  at 
the  Bank,  who  was  to  place  it  to  Mr.  Hoare*« 
account.  When  Mr.. Phillips  came  home,  ba 
was  surprised  to  find  such  a  note  with  Mr. 
Gibson's  hand  to  it ;  the  note  not  of  his  own 
writing,  thouffh  it  is  always  his  practice  to  write 
the  body  of  his  notes  as  well  as  the  subscrip- 
,tion.  And  no  notice  having  been  S[iven  of  it 
by  Mr.  Gikson,  upon  this  be  conceived  a  sus- 
picion, and  resolved  not  to  pay  it  till  be  bad 
lirst  spoke  to  Mr.  Jacoinb.  The  note  was 
shewn  tf>  Mr.  Jacomb,  who,  upon  finding  out 
the  rasure,  and  observing  the  other  circum* 
stances  which  I  at  first  mentioned  to  yon,  im- 
mediately  suspected  it  to  be  a  forgery,  and  took 
methods  for  the  discovery.  He  found  out,  that 
one  of  Mr.  Htare's  notes  had  been  exchanged 
for  Bank-notes,  and  traced  out  the  numbers; 
upon  which  notice  was  immediately  giveu  at 
the  Bank,  that  if  any  of  those  notes  were 
brought  for  payment,  they  should  be  i^topped, 
and  the  person  secured.  It  happened  soon  af- 
ter this,  that  Mr.  Hales  desiguing  to  get  tbe 
remainder  of  the  effects  into  his  pocket,  carried 
Rumsey  within  sight  of  the  Bank,  (who  was  so 
ib^norant  a  person,  that  he  asked  him  whether 
it  u  as  a  church)  and  directeil  Uumsey  to  re* 
ceive  money  then' on  two  Ijank- notes,  each  for 
'^00/.  part  of  the  Bank-notes  L^iven  out  by  Mr. 
Brassey  ;  and  theiv  upou  the  omeers  of  the  Bank 
stopped  Uunis'^y,  and  enquired  into  the  matter. 
Mr.  Ramsey  uus  first  interrogated  how  lie 
came  by  tliese  notes ;  and  atler  much  hcsita-' 
tion  and  dithculty,  at  last  said,  he  had  them 
from  a  gentleman  that  stayed  for  him  at  Robin's 
coAee- house  in  the  Old  Jewry.  Upon  this 
they  sent  a  constable,  and  found  Mr.  Hales 
there,  having  in  his  hand  Air.  Brassey 'a  uote 
for  1,100/.  This  note  he  endeavoured  to  con- 
ceal, but  was  prevented.  They  brought  him 
to  thfr  i  ank,and  upon  search  found  about  him 
the  %cry  effects  which  were  the  whole  produce 
of  Mr.  Hoare's  three  notes,  except  about  tlie 
sum  of  which  was  wanting.     He  was 

asked,  how  lie  came  by  them,  and  by  the  note 
siirned  with  Mr.  Gilisou's  name,  payable  to 
Watson,  with  which  he  procured  them.  The 
account  he  gave  was,  that  he  had  them  from 
one  Mr.  Sanuiel  Palmer :  but  he  there  declared^ 
that  all  the  eflects  that  he  had  about  him  were 
the  produce  of  this  note,  and  wrote  down  in  a 
paper  how  he  had  disnoM>d  of  the  rest. 

Ge^.tlemen,  this  will  appear  to  you  to  be  tbe 
nature  of  tbe  case  i  and  upon  this  Mr.  llales 


171]  2  GEORGE  II. 

was  committed,  and  Rumsey  secured.  And, 
ffentleroen,  I  apprehend,  tliat,  though  this  be  a 
hmt:  series  of  facts,  yet  it  will  amount  to  a  clear 
eTidence  against  the  prisoner.  No  reasonable 
man  can  expect  proof  to  be  made  of  the  Tery 
act  of  forgery.  Such  iniquities  are  deeds  of 
darkness,  and  those  who  commit  them  do  not 
call  witnesses  to  attest  the  performance :  but 
next  to  that  we  have  the  strongest  evidence. 
What  arises  out  of  the  note  itself  is  of  great 
weight :  the  circumstance  of  the  rasnre  and 
alterations,  which  1  will  not  repeat :  the  body 
•f  the  note  not  of  Mr.  Gibson's  writing,  whereas 
it  is  his  constant  practice  to  write  the  whole 
note  with  his  own  hand,  and  that  too  in  a  dif> 
ferent  form  of  expression  from  the  present  note : 
there  is  no  person  of  the  name  of  George  Wat- 
son, with  whom  he  hath  any  dealing.  An- 
other circumstance  material  to  be  taKen  into 
consideration  is  the  immediate  exchanging  all 
these  efRfcts,  without  any  apparent  occasion. 
One  banker's  note  exchanged  for  another,  Mr. 
Hoare's,  Mr.  alderman  Hankey's,  Mr.  Bras- 
sev's — all  of  them  persons  of  i;reat  credit — 
'\Vhat  account  can  be  given,  witliout  any  rea- 
son appearing,  why  one  of  these  gentlemen's 
notes  sliould  He  exchanged  for  another,  but  to 
darken  and  intricate  the  affair  P 

Add  to  this  the  considen&tion  of  the  persons 
concerned :  Mr.  Hales,  a  bankrupt  not  dis- 
charged, employing  such  agents  as  1  have  de- 
scribed to  you  ;  himself  lurking  about  in  a  con- 
cealed manner ;  all  these  circumstances  shew 
the  man  was  doing  a  wicked  thing,  which 
would  not  bear  the  light,  nor  his  appearing  in 
it.  But  what  amounts  to  a  demonstration, 
is  his  directing  these  agents  to  take  upon  them 
feigned  names  and  places,  to  dress  themselves 
in  masquerade,  and  to  take  notes  in  the  names 
of  other  persons,  who  were  absolute  strangers 
to  the  transaction. 

As  this  is  evidence  of  the  prisoner's  publish- 
ing a  fenced  note  knowingly,  it  is  evidence 
likewise  that  he  forged  it :  &r,  if  a  person  huth 
a  forged  note  in  his  custody,  and  takcth  such  . 
methods  to  put  it  off  and  give  it  a  currency,  it  [ 
is  a  strooff  proof  against  him  of  the  forgery  it-  ; 
self;   and  properly  turns  it  upon  the  defendant  i 
to  give  a  clear  account  h<»w  he  received  it,  upon  ! 
what  consideration,  and  in  what  way  of  busi-  | 
ness ;  more  especially  in  this  ca^e,  where  the 
note  is  for  so  great  a  sum  of  money,  that  no- 
body can  pretend  to  be  at  a  loss  or  under  any  , 
difficultv  to  shew  how  they  came  by  it. 

Gentlemen,  when  the  witnesses  shall  have 
given  you  an  account  of  these  things  upon  their 
oatlis,  I  apprehend  there  can  remain  no  doubt 
but  the  charge  of  forgery  against  the  prisoner  ; 
is  just,  and  thu  prosecution  necessary. 

Call  Philip  Booth.    [Who  was  sworn.] 

Solicitor  General,  (Hon.  Mr.  Talbot,)  Mr. 
Booth,  do  yon  know  the  prisoner  at  the  bar, 
Mr.  Hales  r — Booth.  Yes,  Sir,  I  do  know  him. 

Sol.  Gen.  How  long  haTe  you  been  ac- 
quainted with  him  ? 

Booth.  Ercr  since  the  year  1709. 


Trial  of  WiUiam  Hales, 


[17i 


SoL  Gen.  Can  you  remember  the  time— bow 
was  he  brought  up  at  that  timeP 

Booth.  I  remember  him  at  the  shop  of  sir 
Stephen  Evance  several  years  before  thw 
failure. 

SoL  Gen.  Do  you  remember  any  thing  of  t 
franked  letter  ? 

Booth.  About  a  year  and  a  half  ago  be  eisi 
to  me,  desiring  me  (Mr.  Gibson  being  a  men* 
her  of  parliament,  and  his  other  friends  out  if 
town),  that  I  would  do  him  the  favour  to  give 
him  two  franks.  He  brought  two  sheets  ti 
paper;  I  desired  Mr.  Gibson  to  frank  tboii 
who  wrote  on  them,  To  Robert  Booth,  o^ 
Bristol.     Free  Tho.  Gibson. 

Sol.  Gen.  How  did  he  write  his  name  P 

Booth.  Tho.  Gibson. 

Sol.  Gen.  What  did  you  do  with  them  P 

Booth.  I  gave  them  to  Mr.  WiUiam  Halc& 

Sol.  Gen.  Sir,  look  on  that  note.  Are  tm 
acquainted  with  the  hand  of  Mr.  Gibson  P  ISee 
whether  you  take  any  part  of  the  note  to  beef 
his  hand-writing  ? — ^Booth,  The  name  is  his. 

Sol.  Gen.  Is  there  any  other  part  of  the  noil 
which  vou  take  to  be  his  hand-  writing  ? 

Booth,  The  F I  take  to  be  part  of  the  wori 
<  Free'— the  F 1  take  to  be  Mr.  Gibson's  band- 
writing. 

Sol.  Gen.  What  is  the  r  ?  Look  carefully 
upon  it. 

Booth.  The  r  may  be  Mr.  Gibson's ;  bat  the 
0  seemeth  to  be  crowded  in  between  the  JPni 
ther. 

Sol.  Gen.  Do  they  seem  to  be  of  the  WM 
hand,  or  of  a  different  one? 

Booth.  Crowded  in  irregularly. 

Sol.  Gen.  Are  they  of  the  same  ink  P 

Booth.  I  take  them  to  be  of  a  different  ink. 
The  r  is  his  letter;  but  I  take  it  there  is  boom 
alteration :  here  is  a  plain  rasure,  where  the 
letters  *  my'  are  written. 

Sol,  Gen.  What  distance  from  the  rP 

Booth.  The  rasure  is  probably  where  the 
two  c's  stood. 

Sol.  Gen.  The  *  mv,'and  the  word  following, 
do  vou  take  them  to  be  Mr.  Gibson's  writing? 

booth.  No,  Sir. 

Sol.  Gen.  Take  notice  of  the  fold. 

Booth.  This  seems  to  be  the  fold  of  a  letter. 

Sol.  Gen.  If  you  take  that  to  be  the  fold  of  a 
letter ;  Is  that  the  usual  place  for  the  folding 
of  a  letter? 

Booth.  There  must  be  some  alteration  on  the 
left-hand  corner. 

Sol.  Gen.  Make  your  own  oliservations. 
Look  on  the  top  of  it ;  doth  that  seem  the  fold 
of  the  paper  as  at  first,  or  cut  or  torn  off  from 
any  other  paper  ? 

"booth.  I  believe  it  is  not  the  original  fold  of 
the  paper  as  it  is  now. 

Sol.  Gen.  Look  on  that  side  next  me ;  doth 
it  seem  cut  or  torn  off? 

Booth.  Yes,  it  is  not  the  original  selvedge  of 
the  paper. 

Sol.  Gen.  Is  the  original  selvedffe  of  the 
paper  in  any  other  part?  Is  it  cut  imi  or  tiM 
original  fdredgcP 


.  n.  ii«»- 


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■  fid  roiiiiitoii  iiiiiiiii*ii   111 


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175]  2  GEORGE  II. 

Soi.  Oen.  I  ask  one  qaestion  more ;  did  Mr. 
Gibson  e?er  give  franks,  witbout  writing  bins- 
■etf  the  superscription  ? 

Booth.    I  know  not  but  that  sometimes  he 


Mr.  Strange,  I  desire  he  may  fold  Ktbus,(pro- 
4meing  a  sheet  of  paper  whieli  he  bad  folded.) 
This  half  sheet  as  large  as  yuu  can: — Soppose 
yov  see  where  the  name  Thomas  Gibson  is 
wrote,  I  enquire  whether,  when  the  direction 
iras  o?er  it,  there  was  room  to  tear  off  soch  a 
paper  as  this,  (shewing  the  note)  and  hare  none 
of  the  direction?  You  see  the  distance  from 
Free  Thomas  Gibson  to  the  top  of  the  paper; 
was  the  (biding  so  large,  that  there  might  be 
the  direction  torn  offhand  jet  this  (the  note) 
remain? 

Booth,  Am  I  remember,  it  was  a  rerj  larcre 
sheet  of  paper,  and  ?erj  largely  fblded.  This 
I  remember  the  more  particularly,  because 
Mr.  Hales  hath  endeaTonred  the  same  thing 
•ince,  and  I  have  some  of  them  by  me.  I  be- 
tiere  the  paper  was  large  enough  that  there 
might  be  the  direction  torn  off. 

Sol,  Oen,  Pray,  will  you  k)ok  where  Mr. 
Gibson's  name  is  wrote,  and  tell  me  whether 
jou  apprehend  that  end  is  torn  or  cot  T 

Booth.  This  was  the  torn  end,  and  the  other 
answers  exactly. 

Mr.  Robert  Booth  called  and  sworn. 

AU,  Gen,  Sir,  hare  you  ewer  had  any  letter 
kj  tlie  post  from  Mr.  William  Bales? 

B.  Booth.  No,  Sir ;  I  nerer  bad  any  letter 
from  him  by  the  general  post. 

4tt,  Gen.  Can  you  recollect  that  yon  erer 
bad  a  letter  from  any  body,  franked  with  the 
name  of  Thomas  Gilison  ? 

K.  Booth,  1  never  had,  I  am  positively  sure 
•fthat.  ^ 

Att,  Gen,  Do  you  live  at  Bristol  ? 

fi.  Booth.  Yes*  Sir. 

Att,  Gen,  Do  you  know  of  any  other  per- 
son there  of  your  name? 

R,  Booth.  None  at  all. 

Att.  Gen.  Pray,  had  you  ever  any  letter 
from  Kr.  Hales,  either  franked  or  otherwise? 

R,  Booth,  No,  nor  ever  any  correspondence 
with  him. 

TTumuu  Rumtey  called  and  s«vom. 

The  Note  proposed  to  be  read,  and  read  ac- 
cordingly. 

"  Augusl  97, 1738. 
**  I  promise  to  pay  to  George  Watson,  esq. 
er  kearer,  the  sum  of'  six  tJiousaod  Ibifr  luin- 
tiscd  poiMidsi  at  demand,  the  tike  Talus  re- 
cs^ved.    For  myself  and  partnecs, 

"  Tho.  Gubsom.*' 

''  «£.  6,400 


Then  the  Note  was  banded  about  smongst 
Aeiwy. 

Att.  Gen.  Now,  mitlemen,  it  is  proper  Ibr 
ymt  lotake  noliee  of  9ie  obser?  ations  thst  bm?  e 
»»sa  asaiekj  the  whiiissis  vpdii  the  lypstr- 


Trid  of  WUliam  Hales, 

ance  and  ?iew  of  the  note,  the  sixe  and 
of  the  pa|>er,  tlie  rasore,  the  differenc*! 
ink,  the  letter  o  in  the  word  *  For,'  ; 
other  letters.  I  desire  that  you  will  hx 
and  judge  whether  the  side  of  the  pap 
to  the  name  halli  been  lorn  off  from  sot 
else,  or  is  as  it  was  originally.  We  i 
the  next  place,  shew  the  use  that  iras  i 
thisnote.— — Mr.  RumseT,  do  you  ko 
defenilaot,  William  Hales  r 

Rurnsfy.    Yrs,  Sir. 

Att,  Gen.  How  long  have  you  know 

Rumuy.  1  knew  him  above  a  twelve 
agone. 

Att.  Gen.    Did  you  see  him  at  all 
temher  last  ?— JlamMy.  Yes,  Sir. 

Att,  Gen,  What  trade  or  business  i 
of  yourself? 

jRifmsey.  I  have  been  at  sea  ever  si; 
years  of  age,  except  when  in  harbour. 

Att,  Gen.  Well,  Sir.;  What  time  n 
Sefvtember  that  you  saw  Mr.  Hales,  ani 
business  did  he  employ  yon  in  ? 

Rumw,  I  saw  him  every  day. 

Att,  Oen,  Did  you  see  him  Septem 
7th?— Hamiey.  Yes,  Sir. 

Att.  Gen.    What  day  of  the  week  wa 

Runuey.  Satnrday. 

Att.  Gen,    What  did  he  say  fo  you  ? 

Rumtetf,  He  bid  me  go  into  the  city, 
dress  me  in  tliese  clothes. 

Att,  Gen,  What  okttbes  had  you  on  I 

Runuey,    A  lightish-coloured  coat, 
red  waisiooat  and  oreeches. 

Ait,  Oen,  Did  be  say  any  thing  aboi 
bat? 

Rumtey,    When  he  spoke  to  me  to 
the  city  with  him,  I  had  then  a  laced  hi 
new  hat,  with  a  broad  open  lace. 

Att,  Gen,  What  did  he  say  to  yon  ab 

Rumtey,  He  told  me,  he  had  re 
should  wear  a  plain  one,  and  asked  if 
one :  I  told  him,  No :  be  then  desired 
take  his  own. 

Att,  Gen.    What  time  of  the  day  wa 

Rumtey,  About  four  or  five  in  the  afti 
as  near  as  I  can  guess.    • 

Att,  Gen,  Did  he  tell  you  on  what  fc 
you  were  to  go  into  the  city  ? 

Rutnsey,  No,  Sir. 

Att,  Uen.   Whence  did  you  set  out  P 

Rumsey,    From  his  own  bouse  in 
street,  Westminster. 

Att,  Gen,   When  you  came  into  the 
did  you  do  any  thing  there  ? 

Rumsey.    He  went  into  a  shop,  and 
me  a  pocket  book.     [Produces  the  j 
book.] 

Att.  Gen,  Let  us  see  it.  When  y 
bouglit  that,  where  did  you  go  afierwai 

Runuey,  To  Holborn,  to  a  place  whe 
sell  perukes. 

Alt.  Gen,  Was  it  Middle  Row  ? 

Runuey,  I  believe  it  might  be ;  but ' 
was  there  before. 

Att,  Gen,  Did  he  Idl  yoo  be  woild  ] 
joa  wilk  one  ?— Ruiaify.  Yes,  8jr« 
4 


Jot  a  Mitdemeanor. 

IBh.  Wlikt  sor  of  one  was  it  f 

a      I  bnve  it  ID  my  pocket.    fPulls 
-cnloutrd  perake.l 
Gn.    Fut  it  uD  i  I  do  not  obsecre  that 
V  d«w  a  dark  peruke.    Diil  yuu  use  lo 

M.     No,  Sir. 

.  Cm.    \V  tut  peruke  had  you  oa  before, 

l*a»(li!  vuu  ctiBU^;!^  it  f 

m».    I'hia,  Sir,  tiiat  I  bare  here.    [A 

gtlMrad  ptruke,] 

,  6<H.  After  be  had  SHetl  you  wilU  a  pe- 

rtUier  did  lie  carry  ynu  ? 

Mt^    T«  Joka'B  culfee-hauKin  Sfaire- 

m  dk)  Mai  tell  roe  whitlier  we  wer«  go- 
irl«r«bat. 

Or».    Wtaftl  ka|ipeoed  liicre  ? 
HBf.    We  went  iam  ■  back  room,  and 
kattd  ink  liruught  us.     Immediately  a 

Cn.  Did  the  porter  speak  lo  you  ? 
Hnr.     No;    lieaibed  (he  porter,  ir  lie 
Im?    Ueuid,    Ye«.     The  porter  pro- 
■  ItUer  VtirecteJ  to  me,  aiid  ke  bid  lue 

Co.  What  did  you  find  !n  i(  ? 
-y.     I  I'ooud  a  Dole  fur  0,400'.  payable 
*  WataoD,  eiq.  or  bearer. 

LAuk  on  that ;   tell  us  wlielber 
_'.  U  lobe  the  note? 
^  Yea,  Sir ;    I  taku  that  lo  be  the 
R  (lie  bMt  of  a>y  knowledge. 

What  else  did  you  find  in  Ihe 

[  I   Foand  writlen,  ■'  Lady  liarnot 
'-  air  JolinlfyiideCiitlon3,100;. 

^iVliere  wax  it  written  ? 
ntkebodyol'lbeleuer. 
Was  there  any  thing  written  to 

I  remember  only  these 

i  Cm.    What  did  he  order  tou  to  write 

mg.  "  Jaum  Moreton,  or  bearer." 

r  Oim.     Ai\er  he  bad  bid  you  write  this 

what  illil  be  do  with  ihe  paper  ? 

tftjf.  Tore  ihew  names  off. 

.  GtM-    What  dill  be  do  with  the  rest  of 

tmt—Rm<*ty.  I  know  noi. 

lOtm.  WhoihehadlornnlTthesenaniea, 

•rwkk  ohai  you  had  adileil,  what  did 

mji'  lleptUHiD  the  pocket-book,  with 
Ir  U  0,400/.  and  a  40/.  uoIb  and  two 
MeL  Ha  lh«u  ordered  me  lo  ^o  to  Mr. 
Mrf  Mtock'a  »hnp,  lo  g;ive  tbem  the  -lOl. 
Hi  tb*  two  othiT  notei,  and  to  take  their 
lanbW  lo  JamcB  Mareton,  or  bearer. 
Gra.     For  what  auru  ? 


m,  Itn*  to  tdl  thcmlbatheliredatthe 
■H  tf  &<nd>«treet ;  but  I  nerer  knew 
~  '  ad  me  to  il««irti  for  the  6,400/. 
■  At  *^iOOi<  y»>>bl«  lu  lady 


A.  D.  1728. 


on 


Harriot  Elliolt,  and  9,IOOI.  payable  la  lir  Jobiu 
Hynde  Cottou,  or  bearer.  ,L 

All.  Cai.  What  furtberdirectioDS  did  ii«g 
give  you  ? 

Kumtet/.     If  my  name  was  asked,  be  bid  mi\ 
lay  that  it  was  Tboma-f  Fowltr,  or  any  otherjj 
it  was  an  initiffereni  tbioj,',  and  I  mignt  n      . 
use  of  any  name  but  my  own.    He  had  be«t  ] 
so  »ery  kind  to  me,  and  I  had  so  gDod  »i 
nion  tliBt  he  designed  no  ill,  that  1  readily  iJ 
as  he  ordered  me. 

AU,   Gen,     After  he   had   given  you  1 
pocket-book  with  these  notes  and  iosiruction^  J 
wbitber  did  von  go? 

Runucu.    To  Mr.  Snow  and  Pollock's. 

Atl.Cltn.   Wbitber  did  Mr.  Hales  go  ? 

Ruriaey.  A  liitle  way  to  shew  me  the  houw^^ 

Alt .  Oat.    WbRt  happened  ut  ibis  sbop  i 

Ruinuu,  I  asked  for  ibeir  note  for  the  sma^ 
notes,  wliich  they  readily  gave  me.     1  ^''^Bj 
produced   llie  other   note,    and   desired  thnTa^ 
notes  i   the  gentleman  said,  he  did  no 
accept  it,  because  it  waanolallof  Slr.Gibaon't.J 
own  h  and- w riling. 

Att.Ccn.  Didhe  mention  any  other  re 

Rumicy.   1  remember  not. 

Atl.Gm.    Dill  be  ask  your  name  ? 

Aumcy.  I  think  he  did,  and  I  told  him  Tbo-^ 

Att,  Gtn.  Did  any  thing  further  happes  1 
there  ? — Rumiei/,  No,  Sir. 

Att.Oen.   What  did  you  do  then  ? 

Ramsey.  I  went  back  ;  Mr.  Hales  met  n 
a  little  way  off,  on  that  sideof  Temple-bar  nej 
tbe  shop. 

All.  Gen,  Had  be  appointed  to  meet  yoivJ 
there? — Rttnary.  No,  8ir,  j 

Alt. Gen.    VVasit  within  TiewoftbeshopF  1 

Rumtfy.  Yes,  Sir. 

All.  Gen.    What  did  you  say  to  lii 
you  enme  back  ? 

Rumaci/.  He  Baked  me  what  I  had  got,  aoj^ 
1  told  bim  ;  then  we  went  back  to  John's  cof^V 
fee-huuse,  where  I  Ka«ehim  the  note;  helheoT 
bid  me  write, air  Richard  GtosTcnor,  instead  oC J 
lady  Harriot  Elliott. 

.il((.  Gen.  On  ihesamepaper.or  anotherF  ; 

Rumsev.   1  cannot  say. 

All.  Gen.     Did  be  bid  you  strike 
name.  "Lady  Harriot  Elliott  ?" 

Runisn.     No  ;  but  write  on  a  plain  paper,  J 
"To  sir  Richard  Orosvenur  4.300/.  Tn!"    ' 
Hynde  Cotton   3,100/.  pay^ible   lo  tlicm   or|| 

Alt.  Gen.  A^er  ibia,  what  further  directioia  ~] 
did  hegiTeyou  ? 

Ituiiiset/.  HeorderedmetogotoMr.  Boare^J 
in  Fleet-street ;  be  went  opposite  to  tbe  shop,  J 
and  shewed  me  ibe  sbop.  J 

Alt.  Gea.  What  time  of  the  aRemoon  wU^ 
it? — Rumtty.  A  little  before  it  was  dark. 

Att.Gen.  What  o'clock? 

Rumiey.  Half  an  hour  or  three  ((uarlers 
fore  it  was  dark. 

Alt.  Gea.    What  instructions  did  be  gita 
you  la  observe  at  that  sbop  ? 

Rumtey.  To  retxive  fur  ihia  nola  their  uatM 

^  A 


179]  2  GEORGE  11. 

for  4,300/.  to  sir  Richard  GroB?eiior,  and  2,100/L 
to  sir  John  Hynde  CottOD,  payable  to  them  or 
to  the  bearers. 

Att,  Ccn,  Did  he  give  yoa  directioils  about 
taking  any  other  note  ? 

Rumsey,  I  have  a  notion  of  some  other  note, 
but  I  cannot  say  positively  what  it  was,  but  it 
did  not  exceed  70/. 

Att,  Gen.  Did  he  gire  yoa  any  thing  In 
notes  or  cash  P 

Runuey.  Much  the  same  as  before. 

Att.  Gen.  You  say  you  had  a  note  fironH 
Mr.  Poltock;  did  S(r.  Hales  return  that  to 
you? 

Rutnsey.  I  cannot  say  positifely ;  but  it  was 
that,  or  some  other  notes,  not  exceedini;  70^ 

Att.  Gen,  Did  he  give  you  any  directions 
as  to  your  own  name  ? 

Rumsey,  The  same  as  before,  Thomas 
Fowler. 

Att.  Gen,  When  yon  went  to  this  shop, 
what  peruke  haid  you  on  ? 

Rumtey.  The  dark  one,  and  the  other  ilk  my 
pocket 

^Att,  Gen,  What  passed  at  Mr,  Hoare's 
BnopP 

Rumscy.  I  received  their  ngtes,  one  fbr 
4,300/.  payable  to  sir  Richard  GrosTcnor  Or 
bearer,  the  other  for  S.lOOl.  payable  to  i^ 
John  Hyndc  Cotton  or  liearer. 

•Att.  Geri.  What  did\oo  give  for  them  P 

Rumsev.  The  note  of  6,400/. 

Att,  Oen.  What  fbr  the  smaller  noteP 

BMtM€u.  I  cannot  tell. 

Att,  Gen,    For  what  sum  wa»  that  f 

Rumtey,  1  remember  not,  but  it  did  not  ex- 
ceed 70/. 

Att,  Gen,   Where  did  you  find  Mr.  Hales? 

Rumsfy.  He  told  me  be  would  wait  for  me 
at  a  fruil- stall  at  the  end  of  a  court  about  six 
doors  further.  1  went  thilhcr,  and  delivered 
the  notes. 

Att,  Gen,  Did  yon  deliver  him  the  notes  at 
the  fruit- sUll  ? 

Rumsey.  1  cannot  be  positive  whether  there, 
or  nt  the  coffee-house. 

Att,  Gen.  Do  you  know  the  court  where 
the  fruit-stall  wasr  Was  it  Mitre-conrt? 

Rumtey.  i  know  not,  not  being  acquainted 
Vfhh  the  town. 

Att.  Gen,  How  far  from  Mr.  Hoare's  ? 

Rumt^,  About  six  doors. 

Att,  Gen,  When  you  gave  him  the  notes, 
did  yoa  deliter  them  with  the  pocket-book,  or 
without? — Rumtey.  Pocket-book  and  all. 

Att,  Gen,  Where  did  you  go  afterwards  ? 

Rumtey.  He  took  a  coach,  and  bid  the 
coachman  driye  to  the  Royal- Exchange. 

Att.  Gen.  Whither  dia  he  go  when  he  came' 
there? 

Rumtey.  He  went  out  of  the  coach,  went  a 
little  way  with  me  to  Janeway's  coffee- hobae, 
called  for  pen,  ink,  and  paper,  and  bid  itfe 
write  •«  1,200/.  1,100/.  1,060/.  1,000/.  to  Sar 
muel  Palmer  or  bearer." 

Att.  Gen.  WhatiostmcfioAfdidhe^teytfli 
ftbottt  Suanel  Palmer  ? 


Trial  of  William  Hales, 

Rumtey.  To  say  that  lie  lived  in  A 
street,  in  Goodman's  fields. 

Att.  Gen,   After  you  had  done  thia,  v 
did  you  go  next  ? 

Rumtey,  Next  he  carried  me  to  Mr. 
ward's,  a  banker  in  Exchange- alley.  . 
then  dark.     He  bid  roe  desire  their  nc 
these   sums,  payable  to  Samuel  Pale 
bearer,  in  lieu  of  the  4,S00/.  note  i 
Hoare's. 

Att,  Gen.  Wtiat  happened  there  ? 

Rumt^.  They  said  they  could  not  dc 

Att.  Gen,  Where  did  you  go  next  ? 

Rumtey,  I  went  to  him,  who  was  cl 
the  door.  He  took  me  to  Mr.  Brassey' 
me  desire  their  notes  for  the  same  sum, 
of  Mr.  Hoare's  note  payable  to  sir  h 
Grosvenor.  They  gave  me  tlie  notes 
asked  me,  what  Mr.  Palmer  it  was? 
that  he  lived  in  Muusel- street,  Good 
fields. 

Att.  Gen.  Did  you  say  any  thing  fur 
hhn? 

Rumtey.  I  think  not ;  if  I  did,  it  wai 
Mr.  Hales  directed  me. 

Att.  Gen.  Did  they  ask  your  name  ? 

Rumtey.  I  am  not  positive;  if  they 
told  tliem  as  elsewhere,  Thomas  Fowler 

Att.  Gen,  Whither  did  you  carrAr  ihe 

Rumtey.  I  carried  them  to  Mr.  Hates 

Att.  Gen,  Where  was  he? 

Runitey.  He  was  by  a  shop  at  the  cc 
a  court ;  he  was  in  the  court,  and  came 
there.  This  was  a  little  beyond  Mr. 
door.  He  bid  me  ask  the  price  of  8oi 
bonds,  and  ask  them,  whether  they  coi 
1,000/.  worth  by  Monday  inornmg? 
said,  (hey  buiicve<l  they  could.  We  the 
to  Jaueway's  coffee- house. 

Att,  Gcii.  Wlint  did  he  then  ? 

Rumsey.  He  caHed  for  something,  [ 
it,  went  to  Stocks -market,  theucc  took 
and  went  home. 

Att.  Gen,    Where  did  you  go?    D! 
leave  him  there  ? 

Rumt^.  No,  J  supped  with  him. 

Att.  Gen.  Did  he  make  any  fuither  a 
meat  with  you  ? 

Rumtey.  He  bid  me  be  ready  on  3 
morning  in  the  same  clothes. 

Sol.  Gen.  Where  were  you  ? 

Rumtey.    I  was  at  his  house;  he 
me  there. 

Sol.  Gen,   Did  any  thing  else  hapj 
Saturday  f^^Ruttucy.  No,  Sir. 

Sol.  Gen.  Were  you  to  put  on^  the  sa 
and  |»eruke  ? 

Rumtey,  Yes,  Sir ;  and  he  ordered  tl 
to  comb  and  powder  it. 

Sol.  Gen.  On  Monday  morning  dU ; 
as  directed  ? 

-     Rumtey.  Yes,  and  lie  then  told  out 
broad  pieces  and  ten  guineas. 

Sol,  Gen.  Those  notes  that  you  recc 
Mr.  Brassey's,  do  you  koow  the  dale  ol 

Rumtey.  Yea.  &i  Monday  moaiin 


%\gl 


Jir  a  MkitMtoMir, 


[I8» 


.11 

SI 
t1 


•AU  \\^  bad  the  nine  wig  on,  I  be-  t 
i^Iajfkknnrlriin. 

Af^iUiiir.  Let  him  pot  the  wig  on. 
ftBW  Mii  M  the  ilaik  wig.) 
1£l  ro,  I  mily  beUe?e  that  that  is  the 
MpHilliMgh  I  never  nw  him  before 
mwt.  fle  WM  a  good  genteel  yonng  man, 
rikiMwif. 

alUfiff.  What  clothes  had  he  on  ? 
i  I  cannot  directljr  tay.'not  kaovring. 
MXa,  Now  we  are  going  to  Mr.  Hoarc'a 

Hr.  Iwmtr  called  and  ■worn. 

'  JKfim.  Mr.  Turner,  look  on  that  paper ; 
JfcfljMKeitfirat? 
flnr.  On  Saturday  erening,  September 

KGn.  Pkay.can  yon  recollect  with  your* 
Wife  it  was  that  brought  it  you  ? 

Imr.  Sir,  1  did  not  see  Mr.  Ramsey 
L^b  CBBie  into  the  shop  first. 

r  1:  'Bkhaari  Hoart  called  and  iwom. 

Ga.  Hr.  Richard  Hoare,  pray  tell  us 

lyin  saw  that  bill  first? 

■ra  On  the  7lh  of  September  last,  about 

[Abek  in  the  evening.    That  gentleman  (as 

'  k)  produced  Mr.  Snow's  note,  and  a 

Hie  of  95/.  for  which  I  gave  him  onr 

iftr  70^    After  which  he  produced  this 

[Mrf  Mr.  Gibson's  hand,  and  another  paper, 

"  '\  oar  notes  for  that  sum.    I  had  not 

Jai;  m  the  business,  and  not  knowing 

D*s  band -writing,  called  Mr.  Turner 

thai  afiair,  after  1  had  given  the  70/1 

^Noteread: 

ir  Richard  Gmsvenor,  bart.  4,300/. 
frJohn  Hynde  Cotton,  3.100/. 

ftGfli.  Whose  hand -writing  is  this  P 
It  is  mine.  Sir. 


L**»f 


At  GeiL    Do  you  remember  what  ^ou  did 
Mlhitoote,  or  where  you  delivered  it? 


(jr.  At  Mr.  Hoare's. 
>  itL  Cm.    Mr.  Turner,  will  yon  give  us  an 
^m  what  waa  done  upon  the  producing 

'  3Wr.  BIr.  Hoare  sent  for  me.  F  think 
^hj  npon  the  counter  both  the  note  Mr. 
Wy  brought  for  6|400/.  and  this  little  di- 
^jn.  I  made  these  notes  pavahle  accord- 
%ki  knowing  that  sir  John  Hynde  Cotton 
tfhmess  at  Mr.  Hoare's  shop. 

AlG;a.  Doth  he? 

Tvwr.  Yes,  Sir,  he  freqaently  doth. 

flU.  Crn.  Produce  the  three  notes  given  at 
v.lhtre'sshop. 

Ttner.  These  are  the  notes  (producing  the 

1^  wbich  I  gave  in  exchange  for  Mr.  Gib- 

1  Ml  sole,  and  the  70/.  note  Mr.  Hoare  wrote, 

*i|l  signed  them,  and  gave  them  to  Mr. 

^  uM.  Tou  aay,  these  are  the  notes  that 
^pve  in  ezcbattffe  for  that  note ;  do  you 
^  what  became  of  that  bill  afterwanb? 


/ 


A.D.  17M 


Turner,  After  that  T  had  delivered  thi 
notes,  I  had  thia  note  (Mr.Gibson's  6,400/.  note) 
in  exchange,  brought  into  Mr.  Hoare's  cash,  in 
lieu  of  the  other. 

Sol,  Gen.  Did  you  send  it  out  ? 

Turner.  Yes,  ut>on  Monday  morning. 

Sol.  Gen.  Will  you  give  us  an  account  what 
was  done  upon  tliis  ? 

Turner,  1  know  nothing  farther. 

Sol.  Gen.  These  notes  which  you  have  pro- 
duced,  can  you  give  an  account  what  became 
of  them,  or  when  they  were  brought  back  t# 
Mr.  Hoare's  ? 

Turner.  I  did  nothing  farther  about  them. 

The  Notes  read : 

"  I  promise  to  pay  sir  John  Hynde  CotlOB, 
or  bearer,  two  thousand  one  hundred  pounds, 
on  demand,  for  Mess.  Benjamin  and  Henry 
Hoare  and  partner*         Wiluam  Turner." 

"  Septemher  7, 1798. 
<<  I  promise  to  pay  to  sir  Richard  Grosvenor, 
or  bearer,  four  thousand  three  hundred  ponnda, 
on  demand,  for  Mess.  Benjamin  and  Henry 
Hoare  and  partner.         Wiluam  Turner." 

"  September  7, 17«8, 
*'  I  promise  to  pay  James  Moreton,  esq.  or 
bearer,  seventy  pounds,  on  demand,  for  lleii. 
Benjamin  and  Heniy  Hoare  and  partner. 

««  William  Turner.** 

Mr.  George  Lee  called  and  sworn. 

So!.  Gen.  Where  is  it  that  yon  live  ? 

Lee.  At  Mr.  Brassey's  in  Lombard  -  street  F 

Sol.  Gen.  Did  you  ever  see  that  note  before  f 
(Mr.  Hoare's  note  for  A,300L)^Lee.  Yes,  Sir. 

Soi  Gen.  Upon  what  occasion  or  when  was 
it? 

Lee.  It  was  on  Saturday  Sept.  7th  brouglit 
by  Mr.  Rumsey  to  Mr.  Brassey's  in  Lombard* 
street,  near  seven  o'clock  in  the  evening. 

Si)L  Gen.  What  passed  upon  it  ? 

J^e,  Bcingf  brought  there  by  him,  he  pulled 
a  paper  out  of  his  pocket,  desiring  four  notes 
payable  to  Samuel  Palmer.  I  have  three  of 
them  by  me,  and  an  account  of  the  other.  One 
was  for  l,'20O/.  two  for  1,000/.  each,  the  other 
for  1,100/. 

Sol.  Gen.  What  dki  you  give  him  them  in 
exchange  for  F 

Lee.  Mr.  Hoare's  note  for  4,300/. 

Sal,  Gen,   Did  you  ask  who  Palmer  was? 

Lee.  He  told  me  that  he  lived  in  Msnsel* 
street,  in  G(M>dman'8- fields.  1  asked  him,  whe- 
ther be  was  a  merchant  ?  He  said,  that  he  could 
not  tell.  We  had  a  person  dealt  with  us  before 
of  that  name.  I  asKed,  whether  it  was  he? 
He  said,  that  he  could  not  tell.  1  enquire<l  at 
Woodward's,  where  Mr.  Hoare  doth  business; 
they  said  tl.at  there  had  been  a  person  there  of 
the  same  name.  I  iHftrari  to  suspect  some- 
thing. I  then  went  to  Mr.  Hoare's,  to  inquire 
whether  it  was  their  note  ;  they  ner|iiaintf.fi  me 
that  it  was,  and  showed  me  M..  Gihson's.  I 
said  that  1  believed  the  name  was  IMr.  Gibson's 
haudi  but  not  the  body  of  the  iiolc. 


m} 


2  GEORGE  II. 


Trial  of  WiOiam  Halest 


[188 


SoL  Got.  lliis  iransaotioa  wm  oa  the  8a- 
tuc4ftyf8a||t.  fib ;  bow  came  4iie  bills  to  be 
dated!  tbe  Mb  r 

JLcf.  Our  acGOunta  were  balanced  for  that 
day,  it  bein^^rjate  in  the  er^ng;  therefore 
they  were  dated  the  1Kb. 

Sai.G£u,  What  beoame  of  them  afterwarda? 

Lee.  They  came  back  afl^ain  :  tvo  of  them 
came  the  sasie  da^,  Ibe  otber  the  next  •moro- 

Sol.  Gem.  Who  brougiftt  them  P 

Let,  The  mobt  of  the  mooey  -was  fiaid  to 
Mr.  Hals  the  broker;  there  was  650/.  paid  to  a 
perioo  who  bron^t  one  of  the  ooies  in  the 
morning;  I  believe  that  it  was  about  ten 
o'clock.  We  asked  him  his  name ;  he  said, 
it  was  John  Roberta.  He  wanted  to  have  650/. 
to  be  wrote  off  from  mie  of  the  notes,  and  want- 
ed the  mOD^  for  it.  As  1  bad  aome  reason  to 
suspect  on  toe  Saturday  night,  and  he  coming 
80  soon  on  the  IMonday  morninir,  I  asked  him 
whom  he  came  from  7  He  sail.  Mr.  Mansel. 
I  hesitating,  he  said,  the  gentleman  that  it  was 
to ;  I  said,  Palmer ;  lie  said,  Pakaer  in  Man- 
eel  atreet.  I  did  not  know  but  that  there 
might  be  some  demur  on  Mr,  Hoare*s  note  ; 
then^Mie,  to  protract  time,  I  told  him  that  he 
might  receive  the  money  at  the  Bank.  1  gave 
hia  Bank-notes: 

No.    11,  payable  to  Mr.  flankey,  100/. 

106,  payable  to  Mr.  Collett,  50/. 

131,  pay  able  to  Mr.  Charles  Shales  500/. 
Which  together  made  up  650/. 

Sol.  Gen.  Yon  wrote  off,  650/.  Did  yon 
ddiv^  the  note,  when  indorsed,  to  the  person 
that  brought  it? — Lee,  Yes,  Sir. 

SoL  Gen,  This  was  a  1,900/.  note;  How 
was  the  oilier  500/.  paid  ? 

Lee,  The  other  part  was  paid  off  at  several 
pajnments  to  Mr.  Hals. 

SoL  Gen,  As  you  have  given  an  account  of 
that  note,  can  yon  give  an  account  of  the 
other? 

Lee,  Two  to  Mr.  Hals,  Sir,  at  several  pay- 
ments. 

Sol,  Gen,    How  much  was  each  for  ? 

Lee.  A  thousand  pounds. 

SoL  Gen,  Well  then,  of  these  notes  two  for 
1,000/.  each  have  lieen  paid ;  Hath  the  1,100/. 
note  been  paid  ? 

Lee,  Four  hundred  and  twenty  pounds  have 
been  paid  as  part  uf  the  1,100/.  and  the  rest  is 
(Hit-standing  still. 

Sol,  Gen.  Do  you  remember  the  ibrm  of  the 
person  that  came  to  you  by  the  name  of  Ro- 
berts P  Is  that  man  the  peison  ?  (Pointiog  tp 
llcdiert  Hall.) 

Lee.   Yes,  Sir,  I  believe  that  is  the  person. 

Robert  Hall  called  and  sworn. 

SoL  Gen.  Mr.  Hall,  pray  what  trade  are  yon 
^'f^HiilL  Ataylor,Sir. 
SitL  Gen.  Did  you  evor  work  fur  Mr.  Hales? 
lialL  Yes,  Sir,  several  years. 
S(d.  Gen.  Do  vou  know^him  .* 
mn.  Yes,  vflfy  well,  l^r. 


Sol,  Gen,  Had  yon  anr  coBversBtion  wkk 

him  in  September  last  ?--  nalL  Yes,  Sir. 

Sol.  Gen.  Did  he  send  fbc  yon  ? 

HalL  He  sent  his  tbotman  for  me,  Septem- 
ber 8th,  Sunday  night. 

SoL  Gen,  What  message  did  the  fbotmaB 
bring  vou  ? 

Hall.  He  came  and  knocked  at  the  door; 
m^  wife  opened  the  door.  He  desired  to  wpetk 
with  me ;  she  said  that  I  waa  in  bed.  He 
came  up,  opened  the  cmrtain,  told  me  he  baA  a 
message  for  me,  I  must  be  with  his  master  if 
nine  o'clock  on  Monday  morning  at  lioydli 
coffee-house  in  Lombard- street;  fsaid,  that  I 
must  be  with  Mr.  Rumsey  at  that  time  to  tahf 
orders  for  clothes ;  he  told  me,  that  I  should  mctt 
Rumsey  there.  I  went  to  Lloyd's,  and  waUwl 
in  the  coffee-room.  Whilst  I  was  there,  tberd 
came  up  one  Leigh,  who  asked  me  what  busi- 
ness 1  came  about?  I  said,  That  1  couM  not 
tell,  but  waited  for  'squire  Hales.  I  asked  him 
what  his  business  was  ?  He  said,  that  he  bad  a 
letter  to  meet  him  there.  I  drank  aom^hing 
there  before  Mr.  Hales  came,  which  was  the 
best  |)art  of  an  hour.  He  first  mentioned 
aomething  to  Leigh ;  he  then  asked  me  to  stay 
one  half  hour  more.  Accordingly  I  sat  down. 
He  talked  awhile  with  Leigh.  When  Leigb 
was  dismissed  (whither  1  cannot  tell)  he  took 
me  up.  In  the  passogu  he  gave  me  a  note,  and 
desired  me  to  go  to  Mr.  Brasscy's,  and  receive 
650/.  upon  that  note. 

SoL  ben.  What  note  was  it  ? 

HalL  About  1,200/. 

Sol  Gen.  Whai  dirfctions  did  he  give  youf 

Hall.  He  told  hip  to  go  tu  Mi .  Brassey 's  the 
banker,  at  the  Acorn ;  he  told  me  t«i  receive 
650/.  on  til  is  note ;  he  told  me  to  mind  that 
there  was  no  mistake.  If  (said  he)  they  offer 
to  pay  you  silver,  give  them  halt'  a  crown  to 
pay  it  you  in  gold.  He  told  me  tliot  019  gui- 
neas and  one  sliillinar  would  make  just  650/.  I 
took  these  notes  (the  Daiik-nutes  he  received  at 
Mr.  Brassey's:)  he  looked  them  over,  and 
said  that  it  was  all  very  right. 

SoL  Gen,  Look  on  that  paper  :  did  you  ever 
see  that  paper  before?  Is  thattiie  note  that 
you  delivered  lo  Mr.  Brassey  ? 

HalL  Yes,  Sir. 

SoL  Gen,  You  say,  that  yon  had  instrnc- 
tions  to  receive  it  in  gold :  ifid  they  pay  it  in 

Hall.  No,  Sir,  three  Bank-notes. 

Sol,  Gen.  What  was  the  amount  of  them? 

Hull.  Six  hundred  and  fifty  pounds. 

Sol  Geti,  What  did  ^\oii  do  with  them? 

Hall,    I  gave  them  to  Mr.  Hales. 

Sol,  Gen.   Did  they  wrire  imon  the  notef. 

Hull.  Yes,  the\  discounttii  this  050/. 

Sol.  Gen,  When  sent  by  2^1  r.  Hales,  had  yo« 
instructions  what  nanif  \ou  should  go  by  ? 

HalL  Yes,  John  Rubvitst. 

£('/.  Om.  or  what  place  ? 

Hall  The  Huy- market,  or  any  place  wheM 
I  pleascfl  that  way  ? 

Sol,  Gen.  Did  you  aee  him  whik  yoa  werri 
in  the  shop? 


I     .'.!.' pas«a)^inL|njd'«coffee-li<Mse. 

Minefiank-iiate&roL'  6Ml.  wliicb 

I  it>  JHr.  iUlet.  m  you  ewet  te« 

ilterwardar— Ho//.  YeB.Sir. 

.^(in-   li|>OD  whotoecaiiiun  ? 

B*II.  lie  laid  me,  ttint  il'  1  wntiM  lake  a 

inll  ada  ihn  piazu  by  ihe  Unyal  Exchange, 

kvsU  noir  tu  till'.     Aceoiilmgly  lie  came 

k  at,  and  al  the  vuflee-house  (JanewHy's 

Mbbaoan)  Ka*e  air  tbem  agnin-     He  askifd 

m,  wfafbsr  f  wBi  <>ver  at  the  Bniik  ?    I  luld 

iBtallAll  ludbMi>wilhitiit,buln»crrecmeil 

Snaary  tfaerc  for  myselt'  or  an;  boily  gIk. 
W  ■>  sn  wil  receive  Uiia  in  gnli),  ur  il'  I 
ifeaU  b«  ollcnid  Bilrer,  tu  ilu  ua  dif ecieil  before. 
Stt,  Orm    WhU  were  you  to  do  with  Itf 
11^    Tn  iiriag;  it  lo  him  at  lliis  cuHet^liouse 

Did  yon  go  to  the  Banb  ? 

<  II I  to  iiue  there ;  be  bid  me  go  to 
'  mail,  and  be  would  sign  my 
■  In  him,  lie  signol  tiieill ;    I  llieu 

.    ilie  sanie  perjon,  who  ]istd  me 


U. 


er«  Iber  the  strme  tills  which 
aiMr.  Drasscy's? 


Uid  yon  r 

In  ^tjM. 

■oeire  it   iu   gold  or 
liim  wtica  yuu  were 

lorihclEtlcranhom 

JulUc'inLe 

ny  notice  of  you  ? 

Sif  Nk.!  .. 

MAOtm.  Auryouorhim? 

.&IL    N«i  beiiiit  buKy  reiieiitiaK  the  money. 

&  Cf.  If «  Mw  you.  did  iwt  he  1 

tLOi*.  What  did  yondo  with  it^ 

BtlL    I  Mok  it  at  Ihc  Rank.- Ai  I  was 

'B(iK>ri'r''"Hltey,  Mr.  Williani  Hales 
•<a  aakdioit   bv   Ibe  utlEV,  we  tiirutd  into  a 
■^-1  (Ibc  'iii'.U.-   and   »M:e|itre  tavern) ;    he 
(.vjjf  drjnrr,  ia<i  called  for  an  half  ^ot 
'     -      '    -  die  money,  he  counted 

>  <  ynu  any  reason  why 

..  , -.I,  you  were  a  longtime 

id.  OtiL  l>id  b«  offer  you  any  thmg  tor 
fwpa«>.> 

BtU.  Vm  hut  1  aaid  iWt  I  would  have 
MtMf  fram  a  K'nllcmau  that  I  had  serveil  ko 
^(-  lleiH>l,ill  wauldcallun  him  the  next 
*;,  be  wnalJ  lend  tne  101.  and  I  ihould  work 
!■«. 

U.  da.  Wby  did  you  |f9  by  the  name  of 

Ki*wvr 
£Ui-  I  tkM^  I  iH(bl  4a  a*/  Uiiog  for 


Mr.  Ronkfy  called  and  awom. 

Sol.  Gen.  Mr.  iTankey,  will  yon  siFe  sn  ac- 

lUBt  wbeihei'  any  bill*  were  brought  Id  you, 

hat  they  were,  and  by  whom  brought? 

Jfankey.  Mr.  RuiMey  (this  gefltltunsn  here) 

ime  lo  me  od   Monday  mor Aing,  8eplciabe* 

the  9lh,  »iih  two  notes,  tor  which  I  gate  bim 

myoolps,  payable  to  Satinid  Palmer  dr  benier, 

one  fir  1,100(.  Ibe  olberTor  1,0^.  wlliuh  whh 

£0'.  amounied  to  Mr.  Hoare's  notea  or  S.IOOI. 

Bod'TOi. 

Sol,  Gen.  Did  you  hsIi  htm  His  name? 
BaHkey.  No  ;  but  I  ashed  htm  who  KotlttKl 
Palmer  was,  because  we  had  a  geiilleman  0^ 
ihal  namelbat  had  a  drawing  account  with  as, 
and  I  thought  that  tMs  was  (o  be  pnt  to  hia 
DCOouDt ;  but  he  (old  me,  that  it  was  a  gen- 
tleiDan  in  Maosel-ftreet  in  Ooodinau's-fleldv, 
When  he  had  done  his  business,  he  went  out  of 
Ihe  shop.  He  brought  a  liRle  bit  of  paper, 
wherein  was  written  ti)  go  to  alderman  Han- 
key's  and  gMIhe  two  DoiCB  figured  down  1,  |00/. 
1D5I)'.  and  90f.  in  money, 

Sol.  Gen.  You  have  looked  on  Rumsey ;  \» 
thM  Ihe  very  man  ? 

Hankey.  Yes.  Sir;  I  was  witli  him,  when, 
having  b«en  apprehended  at  the  Bank,  be  wW 

Sol.  Gen.  Do  you  remember  any  ibfny  of 
one  Lane's  feKhmg  any  money  ? 

Hankey.  If  you  wilt  favour  me  whh  the 
notes,  I  can  tell  the  Itetler.  The  I.KIU/.  n<yi« 
was  hardly  dry,  when  he  sent  a  purtcr-ttiM 
fellow,  who  came  to  a  servant  of  ours,  atnttfr. 
sired  that  he  would  indorse  5502.  nnd  give  it 
liim  in  guineas ;  he  did  it  ;  he  had  i>,  and 
Went  mitof  (heahop.  I  believe  ihat  it  wssnot 
an  hour  before  Ihe  same  person  came  n^ain, 
an4  said  thai  Mr.  Palmer  bevfged  pardua  fer 
giving  ns  sDrh  trouble,  he  did  Doi  kmvlr  he 
bhould  so  snoB  liave  occasion  fur  it,  desired  that 
we  would  give  hint  tlie  renraiuder  hi  Bunk.  I 
aaid,  that  we  Imd  not  just  the  sum  i»  Bank, 
but  I  would  give  it  him  In  money;  he  said, 
then  be  must  go  and  fetch  a  bag.  Tfe  went 
accordiirgly,  and  fetched  a  ba^.  We  asked  iris 
name  ;  b«  said,  that  it  was  Samtiel  Lane,  and- 
that  he  lived  in  MarlDe-s']unre,  I  gave  him 
523  guineas  and  an  half,  and  6i.  Qd,  which 
ciiRipkled  thai  nnte.  .As  to  the  other  note,  it 
had  not  been  writien  long,  but  a  servanl  lo  Mr. 
Hals,  or  be  himself,  came  and  desired  that  £ 
would  give  him  ■  nnte  fur  853/.  14i-  3d.  p«y- 
oble  to  liim.  1  indorsed  it,  and  gave  bim  a 
uole  for  the  sum  that  he  would  liave. 

SU.  Gen.  There  are  three  notes  that  com- 
pleie  the  sum  of  i,oW.  Do  you  remember 
my  Bank-bills  T 

Uunk^.  I  paid  none  at  at). 

S(ri.  Ocn.  Do  yon  know  any  lldiigr  of  Mi« 
rflMdoe   bein^   paid '!    Give  an  accoaal  what 

Huitk*!/.  I'he  remainder  was  ihns  )iaid; 
l,lWf,wiui|«idtaSiuuuelLaae;  l,o^ttf,b]ri» 


191] 


S  GEORGE  n. 


Trial  tfWmiamHulet, 


[19 


doiwmeDt  for  Snnael  Palmer,  fi>r  whicb  the 
person  had  a  note  payable  to  Mr.  Joho  Hals 
for  the  same  sum ;  for  the  reroaioder  of  that 
note,  two  notes  were  given,  payable  to  James 
Hickman. 

Sol.  Gen.  Were  you  present  at  the  Bank,  Sir, 
when  Mr.  Hales  and  Mr.  Ramsey  wens  seised  ? 
'  Uankey.    No;  but  I  waa  there,  Sir,  when 
he  waa  examined. 


Mr.  Benjamin  Cole  called  and  sworn. 

Sol.  Cen,  Mr.  Cole,  do  yoa  know  Mr.  Hals  ? 

Cole.  I  live  with  him,  »r. 

Sol.  Gen.  Are  you  his  servant,  or  partner? 

Cole.  His  servant 

Sol.  Gen.  Do  yoa  know  any  thing  of  Mr. 
Rumfsey  ? 

Cole.  On  Saturday  September  7th,  he  came 
about  seven  o'clock  to  me,  and  enqnired  the 
price  of  South-sea  bonds.  He  said,  that  he 
sbonld  want  a  lar^  parcel.  I  promised  to 
get  him  them  as  cheap  as  I  could. 

Sol.  Gen.  What  name  did  he  use  ? 

Cole.  None  till  Monday  the  9ih  of  Septem- 
ber. I  then  bought  ten  South-sea  bonds  of 
100/.  each ;  1  asked  him  what  name  they 
abould  be  wtered  in  f  He  said,  Samuel  Palmer 
in  Mansel  street,  in  Goodman's- fields.  The 
amount  was  IfiM.  14f.  4d.  for  which  he  gave 
me  Mr.  Brassey's  note  for  1,000/.  and  the  rest 
in  money. 

Sol.  wn.  Did  you  observe  the  date  of  that 
note?— Co^.  I  did  not  observe  the  note. 

SoL  Gen.  Were  there  any  other  bonds  ? 

Cole.  He  sud  that  he  should  want  more. 
This  happening  when  tliere  were  but  few  came 
to  market,  1  told  him  I  could  not  procure  him 
■0  many  as  be  mentioned.  Then  he  desired  as 
many  Soutli  Sea  bonds  as  I  could  get,  and  the 
rest  India.  I  procured  four  more  South  Sea 
bonds,  and  twenty  India  bonds.  He  paid  me 
a  note  of  Mr.  Brassey's  for  1,000/.  and  ano- 
ther note  of  Mr.  Brassey's  upon  which  there 
remained  550/.  and  one  note  of  Mr.  Hankey's 
ftr  1,050/.  which  made  3,600/.  upon  which 
Mr.  Hals  paid  him  41/.  2i.  3</.  which  made 
the  balance. 

Sol.  Gen.  What  name  did  betake? 

Cole.  He  said  that  his  name  waa  Thomas 
Fowler,  and  that  he  lived  with  Mr.  Pdmer. 

Sol.  Gen.   Was  there  an  account  drawn  up  ? 

CoU.  Yes,  Sir,  this  is  the  abstract  of  the  ac- 
count* 

Debtor,  Samuel  Palmer,  esq. 

To  ten  South  Sea  Bonds     -    ^.  IfOOO    0  0 

Interest  3  Months,  75  Days  18    4  4 

Premium  4/.  per  Cent.    -    •       40    0  0 

CommisiioD    ••••-         0  10  0 

1,058  14    4 


To  twenty  India  Bondi  •  -  S,000  0  -0 
Interest  5  Months  9  Days  -  35  6  0 
Premium  4/.  19«.  per  Cent     -     99    0    0 

Tjiwnnniiiiiffl      »•«»••      lOO 

S|13i   §    0 


To  lour  South  Sea  Bonds       -    -  400  O 

Intemt  3  Months,  75  Days    •  7  5 
Premium  on  ftOOL  at  41.  per 

Cent. -  8  0 

Ditto  oo  SOO/.  at  4/.  li.  per 

Cent. 8  9 

Commission       .    .    .    •    •  0  4 


S,558  17    ( 
To  Cash  paid  Thomas  Fowler  -       41    S    : 

9,600    0   ( 


Per  Thomas  Fowler,  Creditor. 

Sept.  9lh,  1728. 

Bv  Brassy's  Note  ....  1,000  0  Q 
By  Bank  Note,  No.  123  -  -  -  25  0  Q 
By  Cash  received  -    .    ^    .    .       33  14   4 


1,058  14   i 


By  Hankey*s  Note  -  .  - 
By  Brassey's  ditto  -  -  - 
By  Ditto,  Part  of  1,200/.    - 


.  1,050  0 

-  1,000  0 

-  550  0 

2,600  0 


i 


For  Mr.  John  Hals, 

Benjamin  Cole,  jun. 

Sol.  Gen.  How  came  you  to  make  it  up  i 
this  manner,  since  he  toid  yon  that  it  was  ft 
Samuel  Palmer? 

Cole.  Yes,  Sir,  he  did  so ;  but  we  alwij 
mention  also  the  name  of  the  person  that  comi 
to  us.    This  was  the  particular  of  the  acoom 

Sol.  Gen.  Pray,  Mr.  Cole,  do  you  remembi 
that  any  body  came  to  enquire  for  Mr.  Romiey 

Cole.  There  was  a  person  came  and  aski 
for  him  by  the  name  of  Fowler ;  to  the  best  < 
my  memory,  it  was  the  prisoner  at  the  ba 
He  came  and  asked  Mr.  Hals,  if  he  had  as 
thing  to  do  in  South  Sea  bonds. 

Sol.  Gen.  Was  this  Mr.  Hales  that  aski 
him  this  question  ? — Cole,  Yes,  Sir. 

Then  Mr.  Lightfoot^  a  porter,  was  calk 
and  sworn. 

Sol.  Gen.  Do  you  remember.  Sir,  any  tin 
in  September  last,  that  you  were  sent  to  H 
Hals'»office  to  inquire  for  Mr.  Thomas  Fowlci 

Lishtfoot.  Yes,  Sir. 

Sol.  Gen.  When  ? 

Lightfoot.  September  the  9th. 

&J.  Gen.  What  day  of  the  week  wu  it  f 

Lightfooi.  Monday. 

Sol.  Gen.  Who  sent  you  ? 

Lifhtfoot.  Mr.  William  Hales. 

Sol.  Gen.  Is  that  the  gfentleman  ? 

Lightfoot.  Yes,  Sir. 

5o/.  Gen.  What  was  the  message  that  I 
sent  you  on  ? 

Lightfoot.  He  sent  me  to  inquire  lor  U 
Thomas  Fowler,  and  to  tell  him  that  the  ga 
tienum  wanted  him  aa  soon  as  he  ooukl  di 
patch  his  businc8S|  feo  •oont  immediatety  awi 
with  m«  to  him* 


J9S]  Jbr  a  Mitdenueaor. 

U  Om.  DM  you  Ma  an;  boil;  at  Hab'a 
taHMMrcdlbenamer  Shen bim Mr. Rum- 
■j:  »sthattb*pn«HF 

Sal.  6<a.   Did  he  come  nilh  yon  ? 
hfktfoot.     Yea,  Bir,  he  cbdh:  mtb  mc  di- 
Wlj  M  the  pia^a  under  the  Royal  Ex* 

id.  Gn.  Whom  did  he  dmcC  there  ? 

iMtMit.  Mr.  Utie*. 

&i  ficB.  Yon  had  knoirn  Hr.  Ilalei  be- 
^t,  W  you  DUL  ; 

lifUjaat.  Yea,  Sir,  fur  90  yeara :  I  knew 
Ua  when  be  iraa  partner  with  lir  Siephen 

JW.  Gna.  And  are  yon  anre  that  that  ma 
te  jmwog  man  that  aniwsid  to  Uie  name  of 
fa^f— iAjA(/«K.  Y«,Sir. 

■r.  Btimphr*g$  called  and  iwom. 

SU.  GcM.  Let  hiiD  aee  tbe  note.  Mr.  Hum. 
|lnyi^  look  upoti  that  note ;  have  you  aeeo 
iWh  Drte  b«rnre  ? — Rumphrtyi.  Yei|Sir. 

ill.  Cm.  Upon  what  occasion  f 

fi^^Arryi.  By  diredinn  Troni  Mr.  lloare, 
I  WHUorecctTe  it  September  the  9th. 

ttLGen.  Wbiiher  did  you  carry  Jtr 

^mphrt^t.  To  Mr.  GibMn's  hojsEt.  Iliii 
■AiBBM  bring  at  home,  I  led  it  there,  de- 
■idlbBt  the  money  ahould  be  Icfl  vrilL  Mr. 
■nskld,  one  of  the  tellera  at  the  Bank,  to  be 
(hMdlben  to  Mr.  Hoare'i  account.  I  went 
ikM  ane  o'clock  to  tee  if  the  money  iraa  left 
Aan;  floding  that  it  Trasnot,  1  went  to  Mr. 
QAHa'a.  The  caahier  wa«  at  dinner.  I  got 
aNH  ^  for  him,  and  left  word  that  I  should 
Whdi  in  a  quarter  of  an  hour.  I  went  to 
IbrHoTal  Exchange,  where  Mr.  Htiare  met 
■c.  fre  went  to  sir.  Brauey'i  afterwards. 
We  itopped  ihe  payment  of  the  two  Bauk- 
BMt,  whirh  wp  found  there  had  been  delivered 
aat.  I  bad  l-eeii  returoed  not  abore  ten  mi- 
■Blca.  beliire  we  had  au  account  that  a  peraoii 
ni  vioiiped  with  the  two  nolei. 

Sill  Otn,    What  ia  your  busineiar 

Haai^Vcy).  It  ia  mv  bufineai  to  go  with 
Itr  l\-i4re'i,  aoiea  into  the  city. 

M.  (rra.  Wbeo  you  came  the  aecood  time 
k  Mr.  Gibwin'a,  what  anawcr  had  you  ? 

B^mpiitjft.  None,  but  that  the  cashier  waa 
1^  >>!  diuner. 

Sol.  Gen.  Who  wh  tbe  person  that  you 
left  iliF  Dole  with? 

Eimplirtgi  I  do  not  know  the  geatleman's 
Btae;  ihrre  weiK  three  of  ihrm  there,  who 
*ac  -^rtauti  lo  Mr.  Gibaon.  One  of  them 
uluri,  Blifre  it  ahould  be  left?  I  tliereupan 
iwnl.^Ir.  Bromfield,  onsof  theihe  tellera  of 
Atfiaak. 

Ur.  Cramlingtim  called  and  sworn. 
SU.  Gat.  Do  you  remember  that  you  erer 
Ma  that  note  before  1 
Cran'ia^ton.  Yea, Air. 
U.  (ien.  When,  and  opon  what  occasion  F 
CrtrntiMgln.  Ttiia  note  was  bronght  to  Mr. 
VOL.  X\  II. 


A.  D.  1726.  [lU 

Gibann*s  office  Sept.  9th  by  Mr.  Hamphrcra, 
an  cgcot  or  out~teller  to  Mr.  Hoarc.  ila 
deaireil,  that  when  Mr.  Fhilli|u(.Mr.  Gibson's 
cashier)  came  in,  lie  wonid  leore  a  note  or 
money  fur  the  same  with  Mr.  BromfieM  It  tbe 
Bank. 

SnLGai.  WhatbecameofitF 

Cramlington.  1  put  it  into  Mr  Phillipa'aseal 
between  tbe  banisters,  for  him  la  see  when  ha 

Sal.  Gfit.  Are  yon  concerned  or  employed 
for  Mr.  Gibson  about  book-keepingr 

Cramihglon.  No,  Sir. 

Mr.  I'hillipi  called  and  sworn. 

All.  Gen.  Lnok  on  that  note,  Sir:  Hark 
you  CTcr  seen  it  biitbre  ? 

FhiUip:  Yes,  Sir,  on  Monday  tbe  9ih  of 
September  laat.  1  happened  to  be  at  tha 
Bank  ;  and  on  my  return  from  thence,  which 
waii  about  twelve  o'l^lock,  Hr,  Ilarwood,  one  of 
Ihe  clerks  Id  our  odicc,  lo!d  me,  that  Ur. 
Humphreys  (Mr.  Hoare's  c^rvanl)  had  been 
therewith  a  note  fur  6,1-00/.  and  that  I  not 
beinjr  nt  home,  he  hail  left  it  wiin  Hr.  Cram- 
lingluii,  desiriiiic  that  when  1  returned  1  would  . 
leave  a  money  .ticket  for  it  with  Mr,  BromlieM, 
one  of  the  tellers  ol'lho  Bank,  for  Humphreye. 
1  axkcd  him,  where  was  the  note?  Hsaud, 
that  it  waa' left  with  Mr.  rramlingtoi).  I 
opened  my  seat  door,  and  saw  tbe'.noie  there. 
I  was  very  much  surprised,  it  being  wrote  by 
a  straD^e  hand;  and  hnnwiug,by  many  ypsn 
experience,  Ibnt  Air.  Gibson  never  signed  any 
promissory  nutes  without  writing  the  wbofe 
notes.  I  observed  a  difference  in  the  note,  that 
(he  last  words,  "  For  myself  and  [lartnera," 
were  wrote  with  a  nearer  resemblance  to  hi* 
hand  ihau  the  other  pLirt  of  the  note.  I  ob- 
served that  this  note  was  dated  the  STth  of 
Anguht,  and  that  he  went  to  tbe  Bath  uii  ihe 
astb :  1  hod  ihc  honour  lo  ntltnd  him  several 
days.  He  concluded  his  businfiis  relvUnK  la 
the  office  on  the  3Glh  :  On  the  !)7lh  be  did 
nolbinij^of  that  business,  but  prettared  for  hii 
janmey.  I  endeavoureil  to  recnllect,  whether 
lie  hud  any  transaclions  then  with  any  George 
Watson,  towliom  itwasmadepayuljlc.  I  could 
not  remember  thai  he  hiid,  nar  did  I  remember 
that  t  liad  ever  before  heard  of  Ihe  name,  nor 
liad  I  any  directions  from  any  of  my  masters, 
that  there  was  any  such  note  stood  out.  I  ob- 
served also  Ihat  there  was  a  diflerencc  between 
Ihe  stile  of  this  note  and  Mr.  Gibsnn's;  Ha 
always  writetl),  in  n  strniglil  lioe,  "  For  my- 
si-lf  ttoil  Co.  Tfiii.  Gibson,"  never  "  Partners." 
And  then  aatulhe  "value  recavtd,"  be  never 
uficti)  these  wonls.  I  earned  it  lo  Hr.  Har- 
wood,  whom  Mr.  Hiimiihreys  spoke  to.  I 
told  him,  Ihat  I  did  not  lilce  it,  it  being  written 
iu  a  strange  hand  ;  1  would  iMtt  thernbre  lake 
notice  of  II.  We  observed  lliat  there  was  iba 
f  and  r,  in  "  For  myself  and  |iartneni,"  wrote 
in  a,  different  hand.  1  thougtil  that  there 
might  he  some  wickedness  at  the  bottom  ;  I 
went  therefnre myself  iiilaMr.  Boetli's nifiee ; 
and  be  and  Mr.  rhip;i(.'S  being  ihcrc,  I  desired 


195]  2  GEORGE  11. 

II r.  Plilppps  to  look  into  the  books,  And  see 
whether  one  Mv.  Watson  had  credit  for  such 
a  sum.  Not  tinding^  ttixy  such  thing,  I  then 
desired  tbein  to  look  into  the  kaleudars  of  the 
ledj^ers.  Tliey  looked,  and  saw  that  there 
was  no  such  name  there,  i  said  then  to  Mr. 
Booth,  I  have  a  note  for  6.400/.  which  I  do  not 
like,  and  will  not  pay,  without  enquirini^  into 
it,  and  acquainting  Mr.  Jac<mib  (nlr.  Jacomb 
was  then  aoove  stairs,  which  1  knew  not).  I  told 
Mr.  Booth  tlie  circumstances  which  made  me 
suspect  a  forgery ;  Ftfh !  fsaid  he)  this  is  a 
Tiilainy,  a  for^rv;  this  looks  liKC  one  of 
Hales'ii  tricks.  I  wailed  for  Mr.  Jacomb's 
coming  down  ;  f  said  to  him,  Sir,  here  is  a 
note  for  6,400/.  whidi  I  believe  to  be  for^l. 
It  is  (said  Mr.  Jacomb^  very  plain ;  here  is  a 
rasure  on  a  frank.  (Mr.  Booth  having  recol- 
lected that  Mr.  Hales  some  time  berore  had 
two  franks  from  him,  one  of  which  he  now  ans- 
pected  to  be  thus  abused,  acquainted  Mr. 
Jacomb  therewith.)  He  enquired  where  we 
had  it  ?  We  told  him,  of  Mr.  Hampbreyt, 
Mr.  Hoare*8  servant.  He  hereupon  took  me 
out  with  him.  We  went  to  the  fiaidc.  I  sUid 
in  the  outer  office,  whilst  he  went  in  and  ao- 

Snabted  the  directors,  that  such  a  thing  had 
appened.  Mr.  Bromfidd  was  sent  ibrt  and 
•zamined,  what  the  reason  was  of  this  direc- 
tion, 4hat  it  should  be  left  with  him  ?  Urn  said, 
lia  oould  give  no  reason,  but  that  Mr.  Hoare's 
man  used  to  transact  affairs  with  him ;  Mr. 
Jacomb  took  the  note  to  Mr.  IIoftre*S|  and  I 
went  to  dinner. 

Sol,  Oca.  Is  it  not  usual  for  Mr.  Gibson -to 
€nter  notes  in  the  book  when  he  makes  them 
out,  and  give  you  notice  of  them  P 

FhiUJDt.  Yes,  8ir. 

Sol.  Gen.  Sir,  k>ok  on  the  Pand  r,  and  tell 
OS  what  you  think  of  them  ? 

Phillips.  This  is  certainly  Mr.  Gibson's  F, 
the  o  seems  thrust  in  irregularly,  two  e*B 
€rssed,  and  then  follows  <«  Myself  and  partners." 

Soi.  Gen,  You  have  seen  liis  franks ;  doth 
4ie  make  such  a  distance  between  tlie  F  and 
the  r  ?  Cast  your  eye  again  on  it,  and  see  whe- 
ther tha  distance  between  the  F  and  r  be  such 
■s  is  usual  in  his  franking. 

FkiUipi,  Much  as  osual,  for  1  have  com- 
pared it  with  some  franks,  aud  they  are  there 
at  the  same  distance :  but  1  observe  the  o  is 
not  of  the  same  letter,  but  crowded  in  irregu- 
larlv :    And  the  o  is  of  a  blacker  ink. 

Sol.  Gen.  Please,  S^r,  to  k)ok  on  the  be- 
ginning <rf  the  m :  What  observations  do  you 
make  on  that  ? 

FhiUipe.  There  is  the  stroke  before  the  first 
minini  of  the  m  that  seems  of  lighter  ink. 

Sol.  Gen.  What  do  you  make  of  that  ? 

FkUlips.  It  seems  to  me  to  be  the  tail  or 
4illtnofthee. 

Mr.  Maddox  called  and  sworn. 

SoL  Gen.  I  think,  Mr.  Maddox,  you  belong 
10  the  Bank  f •^Maddox.  Yes,  Sir. 

SoL  Gen.  "Proy^  Sir,  will  you  give  ns  an 
■coounty  whether  any  notice  was  givon  you  to 
•top  no/ Bank- Wis  r 


Trial  of  William  HaU$9 


[196 


Madiai.  Mr.  Brassey,  with  Mr.  Hum- 
phreys, (Mr.  Hoare's  man)  came  to  the  Bank  to 
desire  me  to  stop  five  not^,  with  the  nnmbcn, 
dates,  and  names.  I  looked  and  saw  that 
tliree  of  them  of  350/.  were  already  pud.  I 
took  the  numbers  of  those  not  paid,  and  gavt 
directions  to  all  the  tellers,  that  tne  minnte  any 
brought  any  of  them,  they  should  give  mt 
notice.  In  a  little  time  after  I  was  gone  vp^  I 
was  called  down  again.  Pewtress  (one  «f 
them)  came  to  me,  and  told  me  that  two  hun- 
dred pound  notes  were  brought  and  demandedt 
I  asked  him,  who  brought  them  ?  He  told  ms^ 
that  person  (Rumsey).  I  bid  him  bring  a  em- 
atable,  and  not  come  back  again  till  ne  hid 
brought  one.  When  lie  had  brought  OM^  I 
charged  him  with  him.  1  asked,him,  where  he 
had  those  notes  ?  He  would  not  tell  me  whfie 
he  had  them,  nor  who  he  vras,  but  was  vm 
obstinate.  One  of  the  officers  of  the  Bank  saio, 
that  he  knew  him,  that  his  name  vras  Rums^, 
that  he  belonged  to  the  Eagle  galley.  He 
asked  me  to  let  him  write  a  letter ;  I  let  bun, 
but  would  myself  appoint  the  messenger.  'Hi 
wrote  a  letter,  signed  it  Thomas  Fowler,  aoA 
directed  it  to  Blr.  at  Robin's  oofliBe^ 

house.  I  called  some  officers  of  the  Bank, 
and  directed  them  to  go  there  with  the  eon- 
stable,  and  see  what  suspicions  person  wis 
there.  They  went  into  the  coffee-house,  and 
enquired  of  the  master  of  the  honsc  what  com- 
pany was  there.  He  said  there  were  only  thiet 
neighbours,  and  a  fourth  person  whom  he  dM 
not  know.  Whereupon  one  oftheoffioentf 
the  Bank  said,  I  know  that  person ;  that  is  Blir. 
Hales.  They  went  and  seized  him.  As  tiuy 
brouffht  him  mto  the  Bank,  Ramsey  said,  thtt 
is  the  person  that  F  had  the  notes  of;  and  would 
fain  have  spoke  with  him.  I  kept  them  apart, 
carried  the  one  up  stairs  kept  the  other  bdow. 
They  searched  Ilumsey,  found  about  him  60/. 
and  ^L  in  different  bags,  and  two  notes  were 
slopped  below,  before  they  went  up  to  Mr. 
Hales.  They  found  upon  him  above  stairs 
thirty -six  South- Sea  and  India  bonds,  a  bill  of 

fiarcels  tor  some  of  thcui  from  Mr.  Hals,  five 
Kindred  and  odd  pounds  in  money,  a  note  of 
Mr.  Brassey 's,  and  Mr.  Sbales's  note. 

SoL  Gen,  What  account  did  Uumsey  give 
of  the  money  found  upon  hirol'* 

Maddox.  Thirty  ti^e  pounds  and  odd  money 
he  said  wert  his  ovvu  wage!s».  There  was  about 
60/.  besides,  which  he  said  was  Mr.  Hales's. 

SoL  Gen.  What  notes  had  I^Ir,  Huies  about 
liini  ? 

Maddor,  He  had  a  note  of  Mr.  Brassey 's  of 
680/.  the  remainder  of  the  1,100/.  note;  a 
note  of  Mr.  Shaleb^s  of  12U/.  A  note  of  Mr. 
Thrupp's  he  had  received,  and  had  procured 
the  money  for  il,  as  he  owned  when  ne  came 
upon  his  exiuniuution. 

Sol.  Gen,  W|s  bis  examination  iu  writing  or 
net? 

Maddox,  It  was  taken  before  sir  Edwiid 
Bellamy.  1  cannot  say  whether  it^as  in 
writing  or  not. 

Soi,  Gen.  Go.  on,  and  give  us  an 


1  - "  1  Jar  a  MiaJtrntanor. 

wtu  Mr.  fifties  niil  when  examined  at  the 
BiriE,  «poB  making  up  tbe  tccouot  of  wtiat 
wwUMi  fVooiliiui. 

MmUti.  It  wanleil  about  4  or  SCKH.  of  the 
AiUOt.  Mr.  Bate*  bariiif^  tb>t  day  (as  he  mid) 
nii^Hil  two  GaM-  India  bonds,  which  hv  bad 
fiMiai  with  Mr.  Braaier  i  anil  had  ahn  taken 
sfaaMasf  Mr.  Thrunp\  for  4O0/.  which  he 
iai  Jimnalei  with  Air.  Sbalc*.  Amnng^the 
flfMf*atwer«  found  upon  Mr.  Rales,  there 
■MMKCOHOi  of  the  psrlicutar  produce  oflbe 

UCna.  fThatdlilMr.  Ralessay." 

iidier.  He  owned  that  he  cniiiloyed 
tmamn  ;  bM  nid,  that  be  liimself  was  em- 
Blmiby  one  Samuel  Palmer,  a  pcnon  whom 
MM  hn»  acquainted  with  for  «ame  moutha, 
*aJ  (kai  (fab  nolo  na«  left  bv  liim  wiih  him  to 
■nort  in  aomething  that  wnuld  tui  n  to  account. 

Sat  CtM.  Was  tb«re  any  noijce  Ihea  takeo 
d  B>mai'y  '•  going  by  a  tham  name  ? 

ilaridw.  I  remeajiierDoIlhat. 

&1.  G(s.  Was  there  any  one  ihat  laid  Mr. 
BbIm,11mI  he  was  a  laan  of  figures,  and  de- 
mtk  htm  iherdbn;  la  give  a  more  particular 

Ibddai-  Yn,  Mr.  nrosea  Raper. 
im.  Pagt,  U  it  not  eoough  that  Mr.  Hates 
ktoidr  owned  that  what  be  bud  wag  the  pro- 
teaf  ih«  6,400f.  note?  Did  not  )tuni«ey 
■Maf*  all  tkia  f  And  came  be  not  from  hiin 
H  Ai  B»iik  f  Hath  he  nut  owned  it? 

r.      That  was  one  of  llie  notes  found 
Hale.. 


I     •<? 


inL  Pagf-   Dad  you  any  ditcourae  with 
Um  abHxl  lite  import  of  it  ? 


J- 


No,  my  lord.    Thii  paper, 
(uuod  in  lh«  pocket  of  Air.   Hales,  con- 
a  particular  ae«uuni  of  the  produce  of 
IktMOOl.  note,  and  d  lUtle  more. 
IW  t«pci- read  : 

Om  at  Mr.  Henry  Iloare's   fur  -1,100'. 

mUelotir  John  Hynde  Couon. 

maafTOJ.  payable  to  James  Morelon,  Mq. 

Ow«r  i.000l.  nf  Mr.  Nathaniel  Braisey'a. 

Baok-DoUi,  N".  4lQ,  for  1,000/. 

413,  for  J.OOO/, 

414,  for  l,90or. 

415,  fur        251. 
MM.  rtoeiiad  in  Gold. 

Alt  Ota.  In  caae  of  forgery,  every  cir- 
^■MMtce  b  oorroborating  of  the  fact,  and 
<^&dutm  tUi  was  proper  to  be  laid  bvfbre 
fcjory. 

ImL  Page.  Whoae  writing  ia  lhat  paper? 

iladiLu.  I  bvliere  it  (o  be  his :  I  kuetv  bitn 
Vboi  a  ffoldsnitli. 

iay  Darmtll.  Mr.  Maddox,  I  deiire  to  aak 
)••  aaK  qncMion.  We  bare  a  Tery  good  opi- 
iMaffoo  :  I'ray,  do  you  not  know  oneNi- 
kMl  PalBMr  ?  iJiid  you  never  any  iianvan- 
<iM  in  year  booka  between  Mr.  Hnlei  nnd 
fc»Mri  Pat»«r,  with  relation  lo  a  lO.OOOJ. 

1>.  Nl^  H 


A.D.  1728.  [198 

Serj.  Darnell.  Nor  have  yon  narer  heard 
of  him  i* 

Maddot.  No,  only  by  the  paper  found  on 
Mr.  Hales. 

Serj.  Darnell.  Did  not  the  defendant  Mr, 
Ralei  brin|f  ynu  a  draught  from  Mr.  Jacomb 
upon  a  particular  occasion,  payable  lo  DymerF 

Maddar.  1  cannot  remenber  this.  Wo 
neier  bad  any  accoani,  tliat  I  know  uf,  witk 
Pahiier. 

Motel  Raper,  esq.  bhotd. 

Atf.  Otn.  Mr.  Raper,  will  you  look  on  (hat 

Eaper  P  Hare  you  aeen  it  before  f  Do  you 
now  npon  wbaioccaaioa  it  wsf  wrote,  at)<f  bjr 
whom  ? 

Rapcr.  I  waa  at  the  Bank  the  Sth  of  Sep- 
tember  last.  Alderman  Bellamv  was  lh«ri 
examining  Mr.  William  Hslea :  be  was  then 
giriog  an  account  of  the  produce  of  that  ante 
of  6,4001.  of  Mr.  Oibion's.  He  was  a  lon^ 
time  before  he  could  cast  it  up.  He  itceiiieHi 
not  much  concerned.  I  said  to  him,  I  wander 
that  you,  who  ere  a  man  of  figures,  should  be 
ao  much  at  a  loss :  you  wsnt  about  4001.  Ha 
at  ten^h  mentioned  a  note  of  one  ThruppV. 
They  aiked  him,  where  he  had  that  nat«? 
He  said,  of  one  Palmer  of  Mansel- street. 

All.  Gen.  Did  you  aee  hiui  wrilethal  note  f 

Haper.  I  saw  him  sum  up  that,  as  the.[iro- 
duce  of  the  6,400/.  note. 

Alt.  Gen.  Do  yon  remember  tliat  iLe  quei- 
tion  was  asked  hiiu,  why  Rum&ey  wcat  l>y  the 
name  of  Fowler  ? 

Raptr.  I  know  no  reason  that  he  gave.  Ha 
was  asked  the  question  several  limes,  but  gave 

All.  Gen.  The  evidence,  my  lord,  hath  been 
so  extreme  long,  and  every  part  so  well  con- 
nected, that  1  shall  nut  trauble  your  lordsliip 
with  any  observations  tliercupon.  Ifiherelis 
occasion  given  by  the  reply,  youi  lordship  will 
then  give  us  leave. 

Serj.  Darnell.  My  lord,  and  genlleroen  of 
the  jury ;  1  am  couniel  in  ihi?  cnte  for  Mr. 
Hales.     And  indeed,  acoonliitg  tn  the  misre- 

tresentation  that  they  have  laid  him  under, 
e  is  a  very  unfortuoale  peraon.  And  really 
they  have  given  a  great  deal  to  lead  into  a  sus- 
picion of  the  tniih  of  what  he  is  chargeil 
with  ;  but  we  think  a  good  deal  of  it  h  owing 
to  the  misfortune  he  lay  under.  Riling;  been 
a  bankrupt  many  years,  and  not  having  ob- 
tained a  certificate,  it  was  therelure  impos- 
sible for  him  to  carry  on  any  thiog  in  his  own 
name;  therefore,  in  the  whole  course  of  hia 
traffic  fnr  many  years,  he  hath  been  forced  to 
use  tictitious  names,  and  thereby  conceal  all 
receipts  and  payments.  And  the  conseqoence 
of  his  doing  otherwise  is  very  obtious.  Till 
he  hath  obtained  a  cerlitii.-ate,  whulanevcr  he 
received  in  his  own  name  would  br  lubject  to 
the  commissioners.  Tberelore  (aocunling  to 
my  instrnciiooi)  Mr,  Hahs  hath  <.-on>'''aUd 
his  dealings.  I  am  intlmctcd,  thai  he  had 
couuderabic  dealings  tvith  one  Kauiucl  I'alaiar, 


1993  SS  GEORGE  IT. 

and  that  he  was  indebted  to  Mr.  Hales  Id  the 
sum  mentioned  ;  and  bavinfir  had  great  traos- 
actlons  for  many  thoosanib  of  pounds,  they 
came  to  a  balance  of  the  account,  and  Mr. 
Pahner  [;a?c  him  this  note  in  payment.  It  is 
difficult  tor  us  to  dear  thincrs  in  such  affairs 
as  require  privacy:  bnt  it  appears,  tliat  be 
bath  transactcHl  great  affairs.  He  hath  books, 
thereby  it  appeareth  that  he  bath  traded  for 
upwards  of  300,000/.  and  that  be  bath  traded 
ivith  this  Samuel  Palmer  for  upwards  of 
10,000/.  To  prove  that  this  is  not  a  forced 
note,  will  be  extremely  difficult ;  and  I  think 
that  it  matters  not  any  thinu^  to  Mr.  Hales, 
whether  it  be  so  or  not.  If  it  lie  so,  if  this 
note  came  from  Mr.  Palmer  to  Mr.  Hales,  the 
forgery  falls  not  upon  Mr.  Hales.  The  only 
thing  for  us  to  establish  is,  that  it  came  from 
Mr.  Palmer  to  Mr.  Hales.  They  own,  tliat 
he  said,  when  the  thing  was  recent,  that  he 
had  it  from  Palmer.  It  happens  (1  aajipose 
lirom  a  certaintr  that  the  note  was  a  iorged 
note)  that  Mr.  Aimer  is  gone  out  of  the  king- 
dom. It  is  impossible  therefore  to  produce 
him ;  and  if  he  was  here,  he  oould  not  be  a 
witness.  And,  if  my  instmctiona  are  true, 
that  I^almer  is  gone,  it  leaves  Mr.  Hales 
without  the  assistance  of  Palmer.  Taking  it 
lor  granted  that  he  hath  forged  the  note,  we 
submit  it  that  Mr.  Hales  cannot  be  guilty  of 
the  forgery. — Another  part  of  the  indict? 
nent  is,  that  he  hath  published  this  note, 
knowing  it  to  be  forged.  If  he  received  it  in 
satisfactJDn  of  a  debt  or  demand  that  he  had 
upon  Palmer,  that  cxcuseth  him.  Mr.  Palmer 
being  gone,  it  is  only  possible  tor  us,  first,  to 
establish  Mr.  Hales's  character,  then  shew 
tliat  he  is  a  ^at  dealer,  and  produce  his 
books,  in  which  these  thing^s  are  entered. 
There  are  several  transactions  therein,  some 
many  vears  ago,  some  later,  that  will  be 
Terinetlby  witnesses.  If  there  be  such  trans- 
actions which  we  can  verify,  we  leave  it  to  the 
Court  how  far  that  will  avail.  Under  these 
ciroamstances  we  beg  leave  to  submit  it  to 
your  lordbhip. 

Serj.  Bajfnes,  My  lord,  and  gentlemen  of  the 
jury ;  I  am  cooumI  on  the  same  side.  The 
first  thing  that  lies  under  consideration  is,  whe- 
ther this  note  was  forged  by  Mr.  Hales?  That 
it  was  a  forgery,  tiiey  have  giveu  strong  evi- 
dence; but  the  only  question  is,  first,  Whether 
Mr.  Hales  did  forge  it?  In  the  next  place, 
whether  he  publisiicd  it,  knowing  it  to  be 
forged  ?  These  are  the  two  charges  laid  against 
him  in  the  indictment.  We  hope,  that  uiion 
the  evidence  we  shall  give,  you  will  think  him 
clear  of  what  is  charged.  It  is  well  known,  that 
he  hath  dealt  for  as  great  sums  as  most  in 
Lombard -street :  he  hail  the  misfortune  af)er- 
wards  to  fail ;  therefore  be  was  obli^red  to  act 
in  a  different  way  from  others.  We  shall  shew 
that  Mr.  Gibson  himself  gave  him  such  credit, 
that  he  trusted  him  witli  ^eat  sums  of  money, 
and  with  receiving  rents  m  Kent.  For  us  to 
prove  a  negative,  that  he  did  not  furge  tfaia 
ima^  caaaot  be  bnt  bj  riw^nnHaBflM,    lo 


Trial  ^WiUiam  Hales, 


[fee 


order  to  charge  ns,  they  haw  gone  a  grnl 
way  with  ciroumstanoes ;  and  the  question  isj 
what  validity  these  circumstanoes  will  liata 
with  you  ?  They  lay  a  stress  upon  this,  that  ha 

Sve  directions  to  fuimsey  to  tralwact  theae  af« 
rs,  to  change  his  cloaths,  his  wig,  and  to  ^ 
on  another  hat    As  to  that,  that  will  dcocad  a 
great  deal  upon  the  credit  of  Rnmacy'a  cvi« 
dence  which  he  gives.    Mr.  Bnmsey  appiaii 
to  be  partieeps  criminis :    therefore,  thoi^  i 
cannot  say  but  this  evidence  is  le^,  yet  iti^ 
fects  his  character  and  credit:  it  is  notaoch'aa 
if  he  was  an  indifferent  person .    As  lo  the  wig, 
they  made  a  great  noise,  as  if  it  waa  bowll 
with  a  design  to  impose  on  persons  in  tfaal» 
guise.    We  shall  shew  that  it  waa  not,  boCviik 
another  design.    Mr.  Hales  and  Rooiaej  bai 
an  intention,  before  Monday,  to  go  iato  tha 
country.    He  himself  saith,  that  be  only  M 
the  finO  light  wig  which  he  bad  upon  hia  naad. 
It  was  very  proper  at  that  time  of  the  JMI^ 
that  he  should  have  another  wig  to  travel  ia. 
Therefore  it  seems  probable,  that  it  waa  bongbt 
with  that  view,  and  not  to  impose  upoo  per- 
sons; since  that  could  not  make  an  alteralM 
in  his  cooatenance.    As  to  his  acting  iindat  a 
different  name,  that  seems  upon  this  acooont ; 
Mr.  Hales  had  the  misfortune  to  have  a  eon- 
mission  of  bankni|>tcy  awarded  agaiast  Um  t 
and  after  long  soliciting  for  a  cxrtifieate,    "*'' 
not  get  it:  therefore,  although  be  Iran 
great  affdrs,  all  the  sunra  which  he 
ciated  were  forced  to  be  under  feigned  and 
rowed  names;  because  if  his  creditora  ' 
that  he  had  such  credit,  and  negociated 
affairs,  they  would  be  the  harder  npoa  Ui 
Therefore  there  was  such  a  direction  givMi 
that  Mr.  Hales  might  not  be  known  to  be  eoa- 
cemedinsuch  an  affair.— It  is  incumbent  apaa 
us,  first,  to  give  an  account  how  we  canae  bj 
thtftnote:  there  was  one  Samuel  Palmer  in- 
debted to  Mr.  Hales  between  6  and  7,000i. ;  be 
came  to  him,  offered  this  note  as  a  security, 
that  he  might  pay  himself  upon  receiving  tkia 
money ;  thereupon  Mr.  Hales  very  inaomtlj 
took  the  note,  not  questioning  its  goodaass. 
Mr.  Gibson  being  a  man  very  well  known,  Mr. 
Hales  knew  that  the  signing  was  his  hand, 
thouqfh  the  body  of  the  note  was  not  \«ritten  bj 
him  ;  and  he  miglit  be  easily  imposed  upon, 
and  take  this  as  a  good  note.    No  wonder  that 
it  should  be  thought  so.    Thoutzh  Mr.  Poltock 
suspected  this  note,  because  it  was  not  written 
by  Mr.  Gibson's  own  band ;  yet  it  is  plaia,  thai 
at  Mr.  Hoare's  shop,  Mr.  Turner  made  aa 
scruple  at  all  to  exchange  this  note,  and  giva 
other  notes  for  it    Therefore,  though  they  saw 
that  this  note  was  written  on  a  different  piece 
of  paper  from  what  a  note  of  such  a  value  used 
to  be,  it  is  plain  that  Mr.  Turner  did  not  think 
this  of  so  much  weight.     No  wonder,  theea- 
fore,  that  Mr.  Hales  sboulil  be  so  imposed  ea« 
The  next  part  of  the  convitleratiou  is,  Wlictker 
he  published  this  note,  knowing  it  to  be  forgeAf 
For  otherwiae  it  is  not  criminal.    Thtiuwa 
the  indictment  runs,  *'  Knowing  it  to  be  foil- 
ed."   NoW|  in  case  that  we  prove  this  fintpart 


IxipetUalthen'it- 
np  M,  tlia  ulhcr  part  will  fall 

iti,  knowini;  il  tn  l>e  funfcil.  In  pub- 


^  nir  lardsbip. 
t^  in'iIicUucDl  my  lord,  rani,  tliRl  lie,  vi  el 
w«u.  ra.  *  «efbii  M  ti[[um  iieiiuFnilliiM,* 
bil«4lhi*  u*te.  Nnw,  my  lord,  it  a  nul  pre- 
^M«M  he  foTgeil  the  name  of  Mr.  Gibwm ; 
^  Mi  fciifiiii  ,  llioagh  I  do  not  cootrovert  that 
kckricntisntFr  my  Dtme  ta  guilty  of  for;- 
^  ii|ikitb*ile  note,  y«l  ool  ■  Terbii  et  ligari* 
'^^uIhh  ;*  tlial  19,  forging  ilie  whole  note. 
Iknfot  being  charged  berewilh,  and  lliey 
^■■inff  ilul  li*  dkl  write  LUe  iiaii;ii  I'bomas 

^M.  Fft.    In  ilie  name  in  Ibe  indicttneoi  t 
Jmi.  B^*a.  Vci,  Toy  lord. 
Jml  Pmgt.     Now  I'liomnK  Gibson  n  agrpcd 
k     bkilfaekaarfuf  Mr.  Gibon,  but  not  to  ibal 
I    M» 

I        bq.  fi»rM)-    No,  ray  lord,  I  admitted  that, 

I     iiiMiBf  ibeobjeciioii.     I  Mid,  llial  he  Ibat 

I     vntmmiwt  my  name  i«  guilty  of  tbrging  such 

t     IMHi  bal  noi  '  in  lerhis  el   tignris  seqiiCDli- 

I       'b*l'  b«  ■■  fui  guilty  of  forging  Ibe  name  of 

n^HB  (iibMM).     I'bcy  boTe  tokeo  upon  Ihetn 

to  fa  thai  thia  nota  was  '  verbis  et  figurii  je- 

■'MMibui;'    thrn  aller  tbe  body  of  tbe  noK 

M«ab  Thotuoa  Oibavn.     Now,ii>y  lord,  we 

Mifattd  tlM   ia  uot  fore^i.     Tfaotigh  tbe 

I       MMBc*  b4  the  note  is  nul  Mr.  Gibson's  haiid- 

Iwiilf  t  yet  tlu^  <"*»,  on  Itie  otber  hand,  that 
A*  w«e  n  Ibe  band-writing  of  Mr.  Gibson, 
H 1^  it  >p(ieara  tery  plainly,  that  we  hare  not 
inrf  llin  DOIc  '  verbis  <!(  nguris  aeqiieAtihua.' 
Jm.  Faff,  (trolher,  dn  you  rely  upon  this 
""  '  »?  If  you  do,  I  will  yi»e  you  my  opi. 
I  wbcn  tbe  whole  t»  liiiiibed. 


Mr.  Crammer  railed  and  sworn. 
Dai^ull.  Kr,  are  yoa  Br^iinioted  with 


•n.iW.1 

■r.#a«i 


.   -    „  >t  penonally  aoqnainled 

rtklM»,dMarh  I  barelinnwD  bini  by  light 
mmy  yw«.     1   know  nothing  at  all  of  bis 

9my  Durmtll.     Do  you  hnow  Hr.  Snmuel 
hkmrt   Dayaubuuw  biadealin^i' 

e*au.  Yn.  Hir.  aa  to  Mr.  Pulmer.  1  knew 
tialMwaobiid.     1  married  hi*  mollier. 
•■  tmofhl  up  at  Ibt)  Bait  India  house, 
■M  lij  l£*  I^Mt  India  coiupany  iota  IVi 
"'""   '  ""■-   I  many  yean..      Not  hating  tbe 
4  that  be  evpei'ti^,  he  relumed 
It  Maycd  iu  Turkey. 
:  t'sge.     Were  you   ibere  with    him  f 
■"     "  """         what  did  you  know  of 

jk    ba  came    home  throttgh 

:  Y<M  caoMrt  tay  that  upon  oath, 
— -^,_  -rtBO*  Iherrwiih  him,  Did  you 
Wa  Ihm  hn*  ai  Laodou  ahiT  bif  rMuni  f 
■taMbafWiar 


A.  D.  1728. 

Gminger.  I  know  not  of  any  dealia^ni 
had  io  Eogland. 

Just.  fa^e.  DuyMiknowofBoy  ImoivoLiOB 
between  bim  and  Mr.  Halnf 

.rahgtr.  Hf  told  inc 

list,  i'age.  That  \a  uuibing.  What  subslanca 
he  off 

■rainger.  He  bad  no  GiibsUnce  atall,for  ba 
HD  inaotrent  man. 

uRt.  Page.     How  long   aince   he   wa*  in 
Londuo  f 
Qrainger.  Within  a  Iwaliemcalh. 

Thomaa  At/lcs,  esq.  called  and  iworn, 

Serj.  Baynti.    You  are  desired.  Sir,  to  gitc 

I  account,  whether  you  know  the  defendant 

Hr.  Hales,  bow  many  years  you  hare  knuwn 

bim,  and  what  is  your  opioion  of  his.'' 

A^let.  I  baTeknowubiiD  twenty,  three  yean 
ind  upwards,  when  partner  vrilh  sir  Mepheti 
ZviDce,  with  whom  i  keiit  a  considerable  casb 
nil  that  time :  I  reireived  a  great  many  ci(i< 
lilies  tram  Mr.  Hales  upon  Beveral  onMsiona. 
'  r  which  1  hare  always  bad  a  good  opinioH 

Serj.  Baynfi.  AV'bat  opinion  bad  you  of  hia 
character  ? 

Aylei.    I  look  bim  to  be  of  nagoodacha. 


passing  through  his  hanils,  doting 
these  years  that  you  ha>e  knii'iii  him  ? 
Ayltr.  Not  any  since  his  failure. 

Mr.  JLary.  I  beg  a  word  of  the  same  aide 
with  the  other  gentlemen ,  As  Io  iheexcepliniv 
they  have  made,  il  will  not  be  conti-ndeil  (I 
believe)  but  that  they  might  have  laid  it  oiher- 
They  might  bate  made  il  a  forgery  of 

e,  though  ibey  had  acl  i(  forth  otherwise. 

Our  objection  is,  Wl>elher  "  verbis  et  ligoria 
sequeniibiHi"  doth  Dot  lie  it  down  to  the  tecnud 
part  of  ibenoleaa  well  as  Ibe  rest?  Aoolber 
thing  is  this ;  lliey  have  grien  nn  account  of 
the  publication  at  London  in  Mr,  Hoarc's  shop ; 
whelber  slrauld  not  the  forgery  be  lixed  in  Lon* 
don  too  ? 

Jaat.  Po^e.  If  afiirged  note-be  pidiliibed  in 
may  not  Ihe  proseculura  lay  it  in 


Mr.  Lucy.  8lrauld  notthe  torgery  be  local  as 
will  as  the  pitblicaiioD  f 

Jusi.  i'uge.  Yes.  If  ihatvery  act  "f  foreery 
had  been  in  Middlesex,  it  ought  to  bave  been 
tritd  there:  Bpt  where  there  is  tio  |<ositiv« 
and  direct  proof  of  the  forgery,  but  the  nhola 
nriaes  from  circumsiancei,  some  in  London, 
and  some  in  Middlesex,  it  may  be  laid  in  ei- 
ther ;  or  il  would  be  impnasible  ifast  anir  artful 
persoD  should  be  convicted  of  forgery  ;  il  iabul 
being  aJone  when  he  commit*  the  tad,  and  be 
is  aatc.  And  ihe  ot^eotion  will  be  aa  strong  hi 
one  CDtmly  as  in  another ;  and  then,  if  your 
doctrine  be  true,  be  can  be  tried  no  where, 
whiih  sore  is  noi  so.  Yon  know  a  telony  may 
botrittd  ill  any  county  wb«ro  tlic  goods  arc 


SOSj 


S  GEORGE  II. 


Trial  of  Wiilmm  Haiti, 


[SOI 


found  on  the  prisoner.  As  to  your  other  objec- 
tion, that  the  indictmeut  is  for  fon;in^  the 
whole  note,  whereas  Tho.  Oihson  is  Mr.  Gib- 
son's own  hand- writing ;  that  is  extraordinary. 
Did  Mr.  Gibson  put  his  name  to  that  bill  ?  No. 
Suppose,  in  a  Ic>ss  degree,  Mr.  Gibson  had  given 
his  note  for  a  less  sum,  and  Mr.  Hales  bad  only 
made  it  for  a  greater,  would  not  that  have  been 
a  forgery  of  the  whole  bill  ?  You  know  it  is  so 
•f  a  bond,  bank,  or  other  bill,  in  every  day's 
coaimon  experience. 

Att.  Gen.  My  lord,  this  was  the  same  case 
with  Mr.  Ward's.  There  it  was  adjudged, 
that  Mr.  Ward  fmyed  a  note  of  the  dake  of 
Buckingham's  in  that  form.  There  wae  no 
pretence  but  that  it  was  (as  originally)  the 
duke  of  Buckingham's  note.  This  objection 
was  then  made,  but  it  was  over-mled,  That 
the  altering  a  material  part  was  making  it  en- 
tirely another  bill. 

Serj.  Dameli,  My  lord,  we  have  done  with 
eur  Defence. 

Sol.  Gen.  My  lord,  as  their  defence  bath 
given  us  no  further  occasion,  we  shall  not  take 
up  your  lordship's  time  with  any  reply. 

Just.  Page.  Gentlemen  of  the  Jury,  the 
prisoner  at  the  bar  is  indicted  for  forging  a  note 
of  Air.  Gibson's  of  6,400/.  and  also  tor  pub- 
lishing this  note,  knowing  it  to  be  forged ; 
upon  which  two  things  are  proper  for  your 
consideration :  First,  gentlemen,  by  whom  this 
note  was  forged,  (for  it  is  agreed  to  be  a  forged 
note)  whether  by  the  prisoner,  or  if  he  was 
privy  to,  or  concerned  in  it  ?  And  secondljTf 
Whether  he  us  guilty  of  the  publication  of  it 
knowing  it  to  lie  forged  ?  There  have  been  a 
great  number  of  witnesses  examined  ;  and  I 
should  have  gone  over  the  whole  evidence  as 
it  was  given,  but  the  counsel  for  the  prisoner 
have  eased  me  of  that  trouble.  Forgery  it 
what  couoenis  every  £nf|[lishman :  As  paper- 
credit  is  come  to  that  bright  it  is  now  m,  the 
utmost  care  ought  to  be  taken  to  preserve  that 
credit:  but  still  the  innocent  must  not  suffer. 
As  to  this  note's  being  forged,  which  hath 
tjken  up  the  most  part  of  the  very  long  time 
this  cause  hatli  been  trying,  the  counsel  for 
tiiG  prisoner  all  agree  that  it  is  a  forged  note ; 
and  then  it  will  be  to  no  purpose  to  sum  up  that 
part  of  the  evidence  to  you«  I  shall  therefore 
take  notice  only  of  such  parts  as  go  to  prove 
j\lr.  Hales  himself  guilty  of  this  forgery*  or  of 
his  publication  of  it  knowing  it  to  be  forged. 

The  two  iirbt  witnesses  were  Phifip  and 
Robert  Booth,  which  may  be  proper  to  be 
taken  notice  of  by  and  bye. 

The  third  witness  was  Rumsey,  who  hath 
gone  through  this  whole  matter,  and  whose 
credit  hath  been  supported  by  others  of  un- 
questionable reputation  in  every  material  cir- 
cumstance, lie  tells  you,  he  was  no  dealer 
in  thid  kind  of  business,  but  a  perfect  stranger 
to  it,  bred  up  to  the  sea:  that  he  hath  been 
aciiuauited  with  the  prisoner  for  abont  a  year, 
and  from  June,  till  the  time  this  fact_was 
committfidy  wis  ?ery  much  with  him. 


note,  which  was  read  and  shewn  to  yoa,  bean 
date  the  7th  of^September  last;  and  the  wboW 
management  was  carried  on  till  the  9th.  He 
saith,  that  on  the  7th  of  September,  which  wie 
Saturday,  he  was  at  Mr.  Hales'i,  not  thct 
knowing  that  he  was  to  dip  his  finser  for  his 
in  so  vne  a  thing.  He  says,  Mr.  Bales  only 
then  told  him,  that  he  must  go  inlo  the  citv 
with  him  on  some  bnsiness;  and  that  ha 
dress,  which  was  a  red  waistcoat  and  breecbs^ 
were  not  proper  to  appear  in,  in  the  effsir  he 
had  to  employ  him  in  ;  and  that  he  had  pro- 
vided him  another  (the  same  which  RimiiBj 
has  now  on).  That  he  was  not  tlionght  ik* 
poised  enough,  but  was  in  this  new  drcsi  ea^ 
ried  to  Holborn,  and  there  had  a  Mack  penkl 
bought  for  him,  and  a  letter-case  with  papf 
put  m,  as  a  man  of  busiuess ';  from  whamL 
after  he  was  equipped  in  this  disguise,  be  aal 
the  prisoner  went  together  to  John's  ooffbe- 
house  in  Shire-lane.  * 

You  will  observe,  gentlemen,  BIr.  Hales,  m 
Romsey  swears,  did  not  then  discover  to  hini 
what  he  was  to  do ;  but  it  was  to  come  out  m 
by  accident,  which  was  thus :  soon  after  they 
came  to  the  oofiee- bouse,  a  porter  with  a  lettar 
directed  to  Rumsey,  came  there,  which  Mh 
Hales  immediately  took  from  the  porter  sal 
opened;  which  then  appeared  to  be  a  oovw 
with  this  note  in  it,  and  nothing  writ  on  the 
cover  but.  Lady  Harriot  Elliot  4,300/.  Sur  Jeha 
Hynde  Cotton  2,100/.  This,  Rumsey  say^ 
he  did  not  understand ;  nor  did  the  prisoasr 
nve  him  leave  to  open  the  letter,  knowing  Isi 
Ramsey  says)  he  wss  unacquainted  with  M 
contents  of  it.  But  when  BIr.  Hales  btA 
opened  the  letter,  he  explained  to  him  whU 
the  two  names  and  figures  meant,  and  thsa 
told  him,  he  would  have  him  go  to  Bless.  Sneis 
and  Poltock's  with  this  note,  and  get  of  thass 
two  bills,  one  for  lady  Harriot  Elliott  for 
4,300/.  the  other  for  sir  John  Hynde  Cotton 
for  S,100/.  and  told  him,  that  BIr.  Snow's  shop 
was  a  little  without  Temple-bar,  and  did  not 
so  much  as  trust  Rumsey  out  of  his  sight,  but 
went  with  him  over-against  the  door.  Iliim- 
sey  goes  in,  where  was  BIr.  Poltock.  Tho 
first  thing  BIr.  Rumsey  does  is  to  produce  a 
Bank-note  of  40/.  and  10/.  in  money,  and  to 
take  his  note  for  50/.  and  then  produces  the 
note  for  6,400/.  But  BIr.  Poltock  being  a 
very  careful  man,  and  being  now  called,  says, 
he  made  much  the  same  observations  that  I 
believe  you  have  all  made  on  view  of  it.  Ha 
says,  it  was  an  odd  sort  of  a  bill ;  that  he  never 
had  any  of  BIr.  Gibson's  bills  but  of  his  owa 
hand-writing ;  and  that  this  was  writ  oo  so. 
scanty  a  piece  of  paper,  that  he  would  nol 
metldlc  with  it. 

When  Rumsey  came  out  of  the  shop,  ho 
says  he  found  Mr.  Hnles  over-against  the 
door,  where  he  left  him,  and  tells  him  what 
ill  success  he  had  had,  and  gives  him  back  tho 
note :  whereupon  the  prisoner  and  Rumsey  go 
back  to  the  coffee-house,  and  there  the  prisontf 
said,  he  must  try  elsewhere,  and  nanied  Mr. 
Hoare'i,    And  to  give  Kumiey  credit  tbci% 


m 


Jbr  a  Mudemianor. 


A.  D.  172«; 


[306 


li««ii«l  10  pty  in  Ml  Horn's  70/.  that  is, 
Jk Mtek^iois  for  501.  and  30{.  in  rooney, 
IrilitriR  fism's  bUi  for  70/.  which  was 
i:  teitwtboi  acaree light;  and  CTcry 
Mr.  Giboan's  fery  great  credit, 
rriAo  was  then  in  the  shop,  with- 
HHwh  this  note,  takes  it,  and 
two  odiers.  But  Mr.  Hales 
is  Greeted  Ramsey  not  to  take  the 
Mm  Is  Isdy  Harnott  Elliott,  hot  to 
'^  iGfOSfcnor  or  bearer,  and  the  e,100/. 
f  Johi  Hynde  Cotton  or  bearer ;  and 
flsafinns.  And  Kuipsey  swears, 
also  shewed  him  Mr.  Hoare's 
with  him  almost  to  the  door. 
Samser  had  soceeeded  at  Mr. 
htsiySfhe  found  the  prisoner  wait- 
[tf  a  fialHitall,  a  small  distance  from  the 
1  there  he  gave  the  prisoner  the  70/. 
mi  the  notes  he  had  reoeired  in  ex- 
Ar  Mr.  Gibbou's.  Rumsey  swears, 
Hfet  nothing,  and  that  tho  prisoner 
ivbole  profit  Bot  th'is  wonid  not  do 
easiness,  nor  did  he  rest  here. 
tU^g  therefore  b  to  make  the  best 
rssles,  and  to  manage  matters  so  as 
ilililnesd  or  fonnd  ont;  in  which,  gen- 
'"  \%  was  certainly  right  that  the  notes 
IJedufted  and  changed,  divided  and 
"  '  as  moch  as  possible,  that  no  track 
■■ht  be  seen :  and  for  this,  Rumsey 
f  Am  he  acoordiogly  did  go  with  these 
the  prisoner's  direction,  from  one 
i  ts  another ;  first  with  the  4,S00/. 
JiMr.  Woodward's,  who  wouki  not 
viih  it;  thence  to  Mr.  Brassey's, 
ih  cfaaoffed  it  for  four  bills,  which  he 
Mr.  Hales,  who  waited  for  him  at  a 


Ramsey  received  at  Mr.  Bras- 
,  jjljht  goUsroith's,  in  exchange  for  Mr. 
^prt  Mitt  of  4,900/.  were  four,  viz.  one  for 

for  1,100/.  and  two  for  1,000/. 

de  payable  to  one  Samuel  Palmer, 
P^ —  same  Rumsey  was  instructed  by 
Abto  take  these  notes,  and  was  himself 
'AMby  the  prisoner  to  go  by  the  name  of 
tMB^vliieh  hedid;  and  the  prisoner  was 
[^*Mil,  that  he  waited  about  Mr.  Bras- 
4^Aip  during  all  the  time  Rumsey  was 

jny  says,  that  he  went  and  lay  at  Mr. 
gfc  that  and  the  next  night ;  and  Mr. 
^U  him  be  ready  on  Monday  morning 
be  had  then  put  on :  and  accord 


WM  Monday  morning  he  went  with  him 

^^iewav's  coffhe-house,  where  it  was  fixed 

^  k  iboold  dispose   of  these  notes,  and 

^feded  by  the  prisoner  to  go  to  Mr.  Ai- 

■  ^^  Bankey's  to  make  other  alterations, 

-  i^  ^  ^®  Maker's  for  the  bonds  he  had 

I  %b,  who  tokl  him  he  had  onl  v  got  1 ,000/. 

^i^^ieh  Rumsey  saj^s  he  had,  and  af- 

^^  en  his  goinff  again^  Iwd  more. 

jjwfanco,  I  rare  laid  [this]  before  you,  not 

"^consideration  whether  Mr.  Gibson's  note 

^^ifed,  for  that  is  admitted ;  but  how  far 


Itr.  Hales  hu  been  concerned  an  actor  in 
this  aifoir ;  and  to  put  you  in  mind  (if  Rumsey 
swears  true)  that  he  was  only  the  cat's  claw, 
and  a  mere  tool  for  Hales,  and  that  Hales 
contrived  and  ordered  every  thing. 

When  all  this  was  so  succe^nlly  carried 
through,  the  prisoner  semis  Rumsey  to  the 
Bank  for  moaey,  where  the  matter  comes  to 
be  discovered  in  this  manner. 

Mr.  Humphreys  swears,  that  he  being  Mr. 
Hoare's  out-going  cleik  to  carry  bills  abroad 
and  receive  money,  on  Monday  morning  he 
went  to  Mr.  Oibeon's  with  tliis  note  for  6,400/. 
Mr.  Gibson,  he  says,  was  gone  to  Bath ;  and 
it  is  remarkable  that  the  note  is  dated  on  a 
day  when  be  transacted  no  business,  and  it 
was  not  published  till  he  was  gone  to  Bath. 
Mr.  Humnhreys  says,  that  he  not  meeting 
with  Mr.  Gibson's  cashier,  desired  the  money 
should  be  paid  into  the  Bank,  and  letl  the  note 
for  that  purpose.  When  Mr.  Gibson's  cashier, 
Mr.  Phillips,  came  home,  he  says  he  had  the 
bill,  and  looking  upon  it,  saw  great  reason  to 
suspect  it,  and  thought  it  not  probable  Mr. 
Gibron  should  draw  a  bill  as  that  was.  He 
saith,  that  in  all  his  time  he  nerer  knew  Mr. 
Gibson  sign  such  a  note,  nor  any  note  for 
money,  but  of  his  own  hand»writing.  The 
size  of  the  paper  also,  he  says,  confirmed 
his  suspicion.  And  sure,  gentlemen,  paper 
must  be  very  dear,  that  a  note  for  such  a  sum 
should  be  wrote  on  so  scanty  a  piece  as  you 
have  produced.  But  the  casnier  further  says, 
that  looking  on  the  note,  he  found  there 
was  a  manuest  alteration  in  the  writing ;  Tho« 
mas  Gibson  was  Mr.  Gibson's  hand,  but  a 
rasure  appeared  above  it,  and  th^  letter  o  in  the 
word  *  For'  to  be  intruded  in  it,  and  wrote  with 
another  ink.  Yon  have  all  seen  the  note,  and 
to  me  it  seems  very  plain,  that  the  letter  o  was 
not  originally  written  in  that  phice.  And  to  give 
you  at  least  a  very  probable  account,  that  this 
word  was  at  first  *  Free'  and  not '  for' and  done 
by  Mr.  Hales  himself,  the  first  witness  (Mr.  Phi* 
lip  Booth)  you  will  remember  swears,  that  the 
prisoner  some  time  ago  prevailed  on  him  to  get 
of  Mr.  Gibson  two  franks  on  two  letters  of  Mr. 
Hales,  directed  to  Robert  Booth,  eso.  of  Bris- 
tol, ;  and  says,  that  the  foldinirs  of  those  letters 
were  largfe  euough  to  tear  off  the  piece  pro- 
duced. And  Robert  Booth,  esq.  of  Bristol, 
says,  there  is  no  other  of  that  name  there, 
and  that  he  never  received  any  letter  fraoked 
by  Mr.  Gibson.  And  as  things  of  tliis  kind  ant 
generally  made  out  by  ctrcamstances,  '^  ^^ 
no  very  hard  thing  to  erase  the  two  ^r'i,  »r 
the  o  between  the  F  and  r,  in  such  aim— ^^^ 
this  has  been  shewn  to  you.    Ocptfcy-^    '' 

Humphreys  goes  further,  and  wJ^J^SiLf^ 
to  the  Bank  about  noon  that  dsy»  •^  *'■■*'     *• 

Mr.  Gibson's  people  had  not  pai^Jr 


at  which  he  says  he  was  P^^f.^.^i  ^w  j«.*..».. 
knowing  Mr.  Gibson's  credit  f^'  ^  ^^-« 

ness  of  his  people;  and  '**^"*  Vi 
son's  to  know  what  the  rt*^ 
was  informed  of  the  ^^^'Jl^^  T      « 
out  thus.   Mr.  Hoare's  t'^^  "••  ■    '"   '* 


S2071  2  GEORGE  11. 

thifM  and  chati^ed  about,  at  yod  bate  heardi 
aome  part  of  the  mooey  was  at  last  in  Bank- 
bilLi,  and  there  Rumsey  that  Monday  morning 
receif  es  6502.  on  account  of  those  billa,  before 
the  fraud  waa  disco? ered.  But  from  what  ap- 
peared at  Mr.  Oiboon'a,  and  the  Bankoumbera 
of  the  bills  delivered  being  entered,  care  waa 
takeii  to  examine  the  receipt  book,  to  see  who 
came  for  any  more  money  on  those  bills.  And 
Mr.  Maddox  tells  you,  that  be  having  notice 
given  him,  ordered  the  clerk  that  paid,  when 
any  body  came  with  those  bills,  to  seem  ready 
to  pay  the  money,  but  to  delay  it  till  a  conalabie 
could  be  fetched :  that  aoon  after  Rumaey  came 
a^in,  when  a  constable  was  fetched,  and  cnarged 
.with  Rumaey.  He  at  first  declined  to  give 
any  account  of  his  name,  or  where  he  had  the 
note;  at  length  he  told  Mr.  Maddox,  that  if 
they  would  let  him  write  a  letter,  he  wonM 
•end  it  to  the  person  he  had  the  note  from ;  and 
aceordingly  writea  a  letter  to  Mr.  ■■■■■ 
(with  a  blank)  at  Robin's  coffee-house,  with 
which  the  constable,  with  some  of  the  clerks  of 
the  Bank,  went  immediately  to  see  who  waa 
there,  and  found  three  persons  besidca  Mr. 
Halea.  The  three  were  neighbours  whom  the 
coffee-roan  knew  :  Mr.  IlaTea  was  a  stranger 
to  him,  hot  known  to  the  officers  of  the  Bank. 
When  he  was  aeiied,  Mr.  Rumscy  waa  exa- 
mined again,  and  owned  that  that  was  the  very 
person  who  sent  him  with  the  bill.  U|)on  this 
Halea  waa  carried  up  stairs,  examined  and 
aearcfacd ;  and  not  only  one  of  those  bills  that 
had  been  received  found  upon  him,  but  also  au 
account  under  Mr.  Halea's  own  band,  that  ex- 
actly tallied  with  the  account  Rumsey  gave. 
And  Mr.  Maddox  says,  the  prisoner  owned  the 
account  to  be  his;  and  the  notes,  bonds, 
broker's  accoimt  of  the  bonds  bought,  and  ef- 
fects found  upon  him,  to  be  the  very  produce  of 
the  6,400/.  So  that,  gentlemen,  you  will  now 
take  it  into  yonr  consideration,  tnat  the  evi- 
dence against  the  prisoner  doth  not  depend 
aingly  on  the  credit  of  Rumsey,  but  that  he  is 
aupported  by  the  number  of  witnesses  you  have 
had,  and,  iu  particular  by  Mr.  Maddox,  and 
(which  cannot  err)  the  account  and  produce  of 
the  money  taken  upon  him. 

Thus,  gentlemen,  the  forgery  being  admitted, 
I  hare  laid  beibre  you  that  part  of  the  evidence 
(bat  principally  affects  Mr.  Hales,  and  that  goes 
to  prove  him  either  guilty  ef  the  forgery,  or  of 
the  publishing  of  this  note,  knowing  it  to  be 
forged.  As  to  the  tbrgery,  gentlemen*  of  tliia 
note,  by  Mr.  Hales,  I  must  leave  it  to  yon  upon 
the  strength  of  this  evidence,  wliich  has  been 
▼ery  long,  and  (1  doubt  not)  fully  observed  by 

Jou ;  and  that  you  will  give  it  its  just  weight, 
(ut  aa  to  his  publishing  it  knowing  it  to  be 
inged,  he  bath  not  given  you  the  leaat  oolonr 
of  evidence  to  tlie  contrary  ;  and  I  must  tell 
yon,  wherever  a  for^red  note,  or  other  thing  of 
that  nature,  is  found  in  any  one's  hands,  it  is  in 
law  a  strong  evktenoe  that  he  ia  the  ibrger,  un- 
leaa  he  can  give  some  account  of  it.  B«it  hare 
jo«  af8  only  told,  that  he  bad  it  from  Palmer ; 
WtH0l«Btwwd«fproo£    Mr.  Hnlea'a  coun- 


Trial  of  mUiam  Hales. 


E« 


sd  have  indeed  offered  to  yon  in  bis  defence 
first,  that  be  is  a  gentleman,  and  shall  not  b 
presumed  to  be  guilty  of  such  an  uffeuce  ;  urn 
^ntlemen,  aliallany  other  on  a  bare  presump 
tion.  But  here,  gentlemen,  b  great  atrengtl 
of  evidence  that  afl'ecta  him  ;  I  do  not  kn« 
that  1  have  met  with  a  stronger  proof  of  th 
very  fact ;  it  is  not  to  be  expected.  They  kaiff 
also  told  you,  that  he  was  a  bankrupt,  an 
could  not  get  a  certificate ;  thattliecominMa 
of  baokmptcy  against  htin  waa  about  twea^ 
years  ago.  They  say,  that  upon  thai  aoonm 
he  was  forced  to  make  use  of  other  nanM  I 
his  dealings,  and  sometimes  fictitiona  oMi. 
that  he  hath  traded  for  upwards  of  300,000i 
in  that  time:  that  Palmer  was  much  emph^ 
by  him,  and  entrusted  in  the  carrying  ai 
that  trade,  and  being  thereby  indebteJ  to  Mi 
Hales  in  above  7,000/.  gave  him  this  note  I 
part  of  payment ;  which,  aa  to  bis  trading  s 
that  manner,  I  think,  is  so  far  from  juatifyia 
bis  character,  that  it  is  of  itself  a  crime  not  mad 
leaa  than  that  with  which  he  stands  charged 
A  man  that  ia  a  bankrupt,  if  he  aiterwatds  hi 
comeaable,  ouffhtin  honour  and  conscianeai 
pay  bia  just  ddots.  It  is  not  the  first  lime 
nave  known  that  done ;  general  Wood  waa  i 
draper,  fiiiled,  and  (laid  very  little  ;  hn  was 
into  the  army  for  bread,  and  proved  ao  galtai 
a  man,  that  he  raiaed  himself  to  be  a  gcnani 
He,  like  a  good  Chriatian,  and  a  man  that  dMa 
be  would  be  done  by,  paid  hia  debto  to  fk 
full ;  which  if  the  prisoner  had  done,  it 
have  given  him  a  much  better  character, 
tlemen,  his  connsel  have  told  you  he  ca  . 
a  vast  trade  for  twenty  years  ;  but  do  thev  M 
you  that  his  creditors  were  the  better  for  il^  i 
were  ever  paid  one  penny?  No,  geiokmm 
they  did  not ;  and  therefore  I  mnat  leave  ill 
you,  whether  this  waa  not  one  continued  actfl 
fraud  to  cheat  hu  creditors ;  if  so,  it  will  -'^' 
the  prisoner  quite  another  way  than  hb  o 

intended  it.    And  though  two  or  three  wit 

were  called  to  give  evidence  of  the  dealingihl 
tween  Mr.  Hdes  and  Mr.  Palmer,  there  wi 
not  one  thing  proved :  so  that,  gentlemii 
there  seems  very  little  for  you  to  conaidB 
You  have  a  number  of  concurrent  witnoiad 
that  have  given  you  a  full  and  clear  acooont  < 
this  whole  transaction  ;  that  this  was  contrived 
managed,  and  carried  on  by  tlie  prisoner  in 
very  extraordinary  manner,  and  which  tbei 
was  not,  nor  could  be  any  reason  for,  but  I 
avoid  being  detected  of  the  vile  crime  lie  ia  nni 
charged  witli ;  nor  can  there  be  any  doub-  bl 
the  whole  produce  of  this  note  was  for  his  bl 
nefit,  the  account,  bonds,  and  billa,  having  bea 
found  in  his  pocket. 

I  roust  leave  it  to  you,  gentleroen :  but  nen 
was  stronger  evidence  than  here  is,  that  Ml 
Hales  is  the  author  of  this.  So  that  I  thial 
gentlemen,  if  you  believe  the  evivlence,  Ih 
charge,  one  way  or  other,  is  lully  broiighl  I 
the  priitoaer's  dour.  If  you  believe  him  guikj I 
the  forgery,  you  will  then  find  bins  gnihyga 
nerally  of  the  whole  indictment;  bnt  ifyoa  m 
not  aatiaflnd  of  that,  you  will  only  imi  kk 


'  SV)  TnMtqfmiUamtIale$. 

Mbf  of  A*  Mfacr  part  of  tba  iadMlnwnt ;  or, 
tym  MB  ^^  ihu  cvUeoof ,  jou  may  acquit 

IW  Jny  hcwf  witUrawn,  «fW  a  Tei*  mi- 
iMi  Nff,  braogfat  tbe  prwciMr  in  Guilty  of 
fa|a(  ■»  MMc,  and  of  pnMMliing  tbe  Mine, 
hSrafki*  Iw  biged. 

r  wu  «  fMond  time  indictnl 
m  «f  S8  H.  8,  e.  1,  for  obuinm; 
J  tolMM.  To  whiab  indicbnent 
t  plnuUd  Not  Oiiiliy ;  and  the 
w,  in  tnMwio*,  being  oSered  ai 


A.  D.  17S9.  [SIO 

apen  the  fbrmer  indictment,  the  ynj  brangfat 
him  in  Guilty. 

It  ii  (tated  in  tbe  former  edition,  that  this  foil 
rennt,  taken  in  ahort-hand  by  order  of  Hr. 
OibMD,  waa  dot  obtained  in  time  for  interdon 
near  to  the  other  Cases  reapeeting  Halei,  tn 
wbieb  |>art  of  the  work  waa  Ikercfbre  tobrti- 
tnled  a  abort  account  of  the  trial  taken  fmn 
tbe  SeanOQ  Paper.  This  full  report  bring  uow 
giren  in  iia  proper  place,  the  abridgement  from 
the  Beanoa  Paper  u  omitted.  la  Uiat  abridge- 
ment the  trial  u  stated  to  hare  been  on  De- 
cember Mb,  178B. 


I7L  The  Trial  of  Mr.  Wiluah  Hales,  at  tlie  Sessions-House  ia 
the  OW-Bailey,  before  the  Lord  Chief-Baron  Pengelly,  Mr. 
Justice  Reynolds  (afterwards  Lord  Chief-Baron),  Sir  William 
Thompson  (afterwards  Baron),  Serjeant  Rabj,  and  several  of 
his  Majesty's  Justices,  for  Misdemeanors,  in  forging  several 
Notes  and  Indorsements  in  the  Name  of  Samuel  Edward^ 
esq.  and  publishing  the  same,  knowing  them  to  be  forged  :* 
3  George  II.  A.  D.  1729- 


OjfJrr.  OyEZ.  All  manner  of  per- 
mimt  lw*c  any  thing  to  do  at  the  muioqi 
if  Ojeranil  Teriiiiocr,  held  for  the  city  of 
Into  and  c«unly  of  Sliddlesex,  draw  neai', 
ml  pic  ronr  allciiilancf:. 

Ofis.  "Van  good  mtui  nf  llic  city  of  Lonilnn, 
^■■Meil  lo  a|ipear  here  tliia  day,  ii|ion  tiie 
1W  brtneea  our  •orerngn  lord  ihe  king  and 
Vatam  llalpt,  answer  to  your  iiamen,  ai 
(Mapoa,  Sic. — James  Tilnier,  Samuel  Cran- 
mr,  RicbarU  Knollyi,  William  H<)»anl, 
HMnRogcn,  Abraham  Punier,  Robert  Ktiap- 
hd^lt(•bert  Kendal,  Jolin  llearoe,  Thomas 
■aaee.  TbomH  C'nurt,  R^ljili  Knox,  Tlioinu 
F«d,  CoraeliiH  Slason,  Jobo  I'ote,  Richard 
Etuncy,  Jame*  Coulter,  Henry  i$pi'a;»f, 
iMyb  }BC:kM>u,  Henry  Athliural,  Jcjtin  UeT- 
Uft,  IVilliain    Selwyo,  Samuel    Craiglicad, 

Pitdcrick  Ktaunton, Eloikyni,  Joliu  Jtu- 

'        Nicbolaa  Bemfield,  Edward  Tay,  t>t:ter 


htkNie 
Gmk. 


Ckrk.  Yon  chall  well  ami  truly  try  thii 
iwt  buween  our  toFerei;;n  lord  the  king  and 
Vjiam  Hatea.    Sa  help  you  God. 


^Ml  Cranmer, 

fetad  k.noUy«, 


Joar. 

I'boma*  Ford, 
Ralph  Knox. 
Cornel  Jul  Haton. 
John  l>nte, 
Richard  Chauocr, 
Jaaepb  Jacbion. 


1  Cltrk.  Oyex.  If  any  man  ean  inform  onr 
Borereign  lord  the  king,  the  king's  jnitices,  tba 
king's  attorney,  the  Iud^i  Serjeants,  in  tbia 
rauw  betweFn  our  «otereign  lord  the  king  and 
» illiam  HaJFfl,  let  him  no»  come  forth. 

Attorncfi  General.  (Sir  Philip  Yorke,  after- 
irarilB  earl  nl'  Elarduii^ke).  Sly  lord,  we  desire 
tlitl  those  that  nere  Bummnneil  on  the  jury, 
who  happvnpd  not  to  be  iKnrn,  should  flay, 
Inl  vriten  Mr,  Kiniiersley  a  aTraigoed  there 
should  bna  detect  of  jury  men. 

It  wnH  ordered  accordingly  by  the  Court. 

Clerk  nf  Arraigjit.  Gentlemen  of  the  Jury, 
William  Hales  viands  indicted,  by  the  name  of 
Willium  Hales,  late  of  London,  goldsmith,  for 
that  he  bein^  a  person  uf  eril  fame  and  conver- 
salioD,  oiid  enileavoiirins  Samuel  Edwards,  esq. 
and  divers  others  willingly  to  defraud,  on  the 
lit  of  Juntr,  in  the  parish  of  ,  had  in 

his  custody  a  certain  note,  bearing  date  May 
11,  179tJ,  by  which  note  it  was  supposed,  that 
Mr.  Robert' EJalest  dill  promise  to  pay  uuta 

t  This  Robert  Hales,  Mq.  Jan.  -17,  1138-9, 
was  tried  at  the  King'a-beiich  bar,  Westmin- 
sler,  liy  a  special  jury  of  the  county  of  Mid- 
dlesex, of  which  lir  George  Waltcn,  koL  waa 
fon-man,  on  an  iodictoieut  tor  a  misdemeanor, 
lor  that  llie  said  Robert  Hales,  esq.  wonM  ba*S 
defrauded  Samuel  Uilwanls,  esq.  of  BOOf-  by 
mean*  of  a  note,  drawn  by  the  aaid  Robert 
Hales,  esq.  lor  a/Ml.  ])Byable  to  Samuel  Ed- 
wards, esq.  iir  order.  TIm  paper,  on  which 
the  said  Note  waa  drawn,  hatinif  the  n 
the  said  tftuiiBct  Edward*  01 


livlnck  11 


811] 


S  GEORGE  IL 


Trial  ^WiUiamHatii, 


[»« 


Samuel  Edwards,  esq.  the  full  sum  of  800/. ; 
aiid  that,  on  the  same  note,  with  an  intent  to 
defraud,  in  the  parith  aforesaid,  he  did  frawtu- 
l^Dtly  and  deceitfully,  on  the  IStb  of  June, 
forge  and  counterfeit  a  certain  indoraement,  to 
the  grreat  dama^^e  of  the  said  Samuel  EdwardH, 
esq.  to  the  breach  of  his  miyesty's  |>eace,  and 
the  ill  example  of  his  majesty 'a  snbjeclfi  in  like 
case  offending'. 

Mr.  Siraniie.  May  it  please  your  lordship, 
and  you  (rcntlemen  of  the  jury,  the  |irisouer  at 
the  bar,  William  Hales,  standeth  indicted  for 
forgiu;;,  counterfeiting',  and  publishing  an  in- 
dorsement of  Samuel  Edwards,  esq.  on  a  pro- 
missory note.  The  indictment  sets  forth,  that 
the  prisoner  did  endeavour  to  deceive  and  de- 
fraud Samuel  Edwards,  esq.  and  othen  bis 
majesty *saubjects,  having  in  bis  possession  a 
certain  promissory  note,  under  tne  hand  of 
Roltcrt  Halc«,  lieariug  ilate  Ma^  17,  1728,  by 
which  note,  this  Robert  Hales  is  supposed  to 
promise  to  pay  to  Samuel  Edwards,  esq.  or 
order,  a  certain  sumof  bOO/.  having  this  note  in 
his  custody,  did  forge  and  counterfeit,  and 
caused  to  be  forged  and  counterfeited,  a  certain 
indorsement  ou  the  same  note,  viz. 

»  Pray  pay  to  for  Samuel  Edwards." 

and  having  in  his  custody  the  said  note  for 
800/.  payable  to  Samuel  Edwards,  esq.  on 
which  there  was  so  forged  an  indorsement  in 
the  name  of  the  said  Samuel  Edwards,  esq.  did 
publish  it  to  be  a  true  indorsement,  knowing  the 
■ame  to  be  so  forged  and  counterfeited.  This 
is  laid  to  be  to  the  great  damage  of  the  said 
Samuel  Edwards,  esq.  the  brewJi  of  bis  ma- 
jesty's peace,  and  the  ill  example  of  bis  ma- 
jesty's subjects  in  like  case  offending.  To  this 
the  said  defendant  hath  pleaded,  Not  Guilty. 

only  as  a  frank  of  a  letter  to  be  sent  by  the 
post ;  he,  the  said  Robert  Hales,  having  no 
dealings  i^ilh  the  said  Samuel  Edwards.  The 
trial  lasted  seven  hours,  when  the^ury  brought 
bitii  in  Guilty.  But  in  June  following,  he 
pleaded  his  majesty's  most  gracious  pardon  in 
the  Court  of  King's-bench,  for  the  said  offence. 

Mich.  Term  [tlie  year  of  the  King  is  omitted], 

Geo.  8. 

DoMiNts  Rkx  vert.  Robe&tum  Hales. 

**  Mr.  Attorney  moved  for  a  trial  at  bar  on 
an  information  tiled  by  him  for  forgery.  Uui 
it  not  being  carried  on  at  the  expence  of  the 
crown,  but  of  a  private  prosecutor,  the  Court 
held,  that  he  miwt  make  out  the  usual  requi- 
hites  to  bring  it  to  the  bar :  so  the  motion  was 
denied.  And,  at  anotlier  day,  Mr.  Attorney 
moved,  on  an  authority  from  the  king  to  pro- 
secute, and  it  was  granted  as  of  rigiit  to  the 
king  in  his  own  cause.  And  in  HiU  set|uen'.  it 
was  tried,  and  tlie  defenilaut  convicted.  And 
in  Trin.  sequeu*.  being  called  to  judgment,  be 
nrodnced  a  |iardon,  which  was  allowed ;  and 
being  only  for  a  misdemeanor,  be  was  not  pnt 
to  go  to  toe  bar,  or  plead  it  u|>on  his  knees." 
8iniif«i  vol.  8,  p.  816.    Farmer  Edition, 


Attorney  General,  Mv  lord,  and  gentlenm 
of  the  jnrv,  I  am  counsel  on  the  aame  side,  for 
my  lord  the  king.    The  charge  against  thed^ 
fendant,  William  Hales,  is  for  forging  an  in- 
dorsement on  a  promissory  mite,  to  Samnel 
Edwards,  oq.  for  tbe  biho  of  800/.    Tbe  boIb 
was  made  in  the  name  of  Robert  Hales,  for 
800/.,  payable  to  Samuel  Edwards,  esq.  sr 
order.    And,  gentlemen,  it  will  appear,  thai 
the  prisoner  hath  been  iruiltv  both  of  tbigisg 
this  indorsement,  and  of  publisbing  it  kMv* 
ing  it  to  be  so  forged.   Gentlemen)  tnis  Samsd 
Edwards,  esq.  bath  a  considerable  empfoyeil 
in  the  Exchequer,  and  is  besides  a  membsref 
the  House  of  Commons,  and  by  that  bath  the 
privilege  of  sending  his  poa- letters  free.    Il 
was  his  misfortune  to  lite  in  the  neighbourbosA 
of  Mr.  Hales,  in  Duke-street,  in  \VestminsMr. 
The  opportunity  for  committing  of  this  (rmnd 
seems  to  have  kfceu  in  this  manner :  Mr.  Haka 
used  frequently  to^  apply  to   Mr.  Edwardii 
sometimes  by  binwelf,  sometimes  by  a  servant, 
for  frank  covers  of  letters  to  send  news  into  thi 
oonntry.    The  gentleman's   crood -nature  in- 
duced 'him  to  accommodate  him  according  « 
his  desire  with  them,  supposing  that  they  wen 
only  designed  to  send  news  to  his  friends  in  tbi 
oountrv.    He   having  possesseil   himself  si 
several  pa|iers  thus  subscribed,  it  will  appcsfi 
tliat  most  probably  he  made  use  of  one  or  tbcsi 
franks  to  commit  this  forgery.    The  fwrsery  ii 
an  indorsement  ou  a   note  of  Robert  llaki 
The  note  is  thizt : 

«*  Aftfy  17,  1798i 
'<  I  promise  to  pay  to  Samuel  EdwardSi  siq. 
or  order,  eight  hundred  pounds,  three  nonlbi 
after  date,  value  received. 

"  Robert  Halib.* 

The  Indorsement  is  thus  : 

*'  Pray  pay  the  value  of  this  to  ,  Ibi 

raloe  received.  Samuel  Edwards," 

1'his  indorsement  being  thus  wrote  over  tbi 
name  Samuel  Edwards,  gentlemen,  it  apjpcsn 
by  the  face  of  this  indorsement,  that  it  isca 
off  from  another  writing.  There  is  the  tail  o 
a  letter,  which  manifestly  apiienrs.  The  won 
'  the '  is  wrote  with  aii  abbreviation  y.  Tba 
wilt  appear  to  be  a  wonl  altered  from  some 
thing  else.  It  is  difficult  to  tell  whether  li 
read  it  fory«,  or  which  looks  like  tbe  troth  s 
the  case,  for  *  ye.'  It  will  appear  to  be  ver 
;  probable,  that  the  manner  of  forging  was  this 
having  possessed  himself  of  these  franks,  h 
cut  off  a  piece  of  one  of  these  franks  proper  In 
a  promissory  note  to  be  wrote  on  it,  whid 
would  have  on  the  back  of  it  the  name  of  8a 
niuel  Edwards.  When  he  had  done  this,  b 
did  not  think  proper  to  write  the  note  hiowel 
but  got  another  gentleman  to  write  a  proow 
sory  note  ou  the  back  of  this  paper,  payaUol 
Samuel  Edwards,  esq.  or  order.  When  tbi 
was  done,  the  name  Samuel  Edwards  ssns 
for  sn  indoraement  on  the  note.  And  the  ftlM 
ration  seems  to  have  been  made  in  tbe  iblloM 
ing  manner:  there  being  tbe  word  'ffsa 
wrote  over  the  saaei  tbtro  is  Ike  Isttsr 


say 


^r  a  Mitdemeanor, 


A.  D.  nS!). 


[?14 


umM  m  between  the  f  and  the  r.     At  to 

§i«'ttfter  tlie  r,  the  use  made  of  them  is 

ill :  set  ef  the  one  of  them  is  drawn  the  stroke 

fcrdM  tetter  jr,  the  latter  c  stands  on  ooe  side, 

viMher  above  the  y,  and  makes  y^.    Ha? ing 

tesMs,  U  eppeew,  that  here  is  a  promissory 

vis,  a  the  nune  of  Robert  Hales,  to  8amuel 

M^■i^  een.  end  here  is  an  indorsement  of 

■r.  Vsaiiel  Edwards,  by  which,  by  virtue  of  an 

ad  rf  pafiaineiit^  which  makes  these  notes 

aad  tlie  indorser  liable,  Mr.  Edwards 

iaUe  16  the  pajrtnent  of  this  note.  The 

_Jb  of  this  note  ts  this,  to  raise  monejr 

ity  and  atake  the  credit  of  Mr.  Edwards 

MfMily  for  this  money.   Gentlemen,  hav- 

i^  dsae  ihia,  he  applies  to  Mr.  Harle,  to  bor- 

MWflf  Ues  a  certain  sum  of  450/.    He  knew 

Mj  weH,  that  hia  credit  would  not  serve  for 

im  poraese,  he  beinf  a  known  bankrupt ;  but 

Mnd  dfeat  Mr.  Harle  would  lend  bim  450/. 

CI  te  credit  of  this  note.    Mr.  Harle  knew 
Mr.  Edwards  was  a  gentleman  of  great 
Mfit:  il  wta  a  promissory  note  of  800/.  pav- 
dHi  Is  SaoBuel  Edwards,  esq.  and  indorsed  by 
HavEl  Gdwards :    Mr.  Harle  made  therefore 
adsA  of  advancing  the  money  desired  upon 
it  The  anaDner  of  adrandng  this  money  was 
1^  Ihb  Harle's  making  a  draught  upon  his 
(PMhMm,  Mesa.  Caswal  and  Mount,  where 
Mr.  Brica  received  this  money .    Gentlemen, 
ttat  wiH  be  evidence  to  charge  this  upon  Mr. 
Uhl    Gentlemen,  the  occasion  of  disco ver- 
iig  im  leiwy  was  this,  Mr.  Hales  having 
M  Cihen  op  in  September  last,  ou  another 
iasPWf  of  forging  a  note  of  Mr.  Gibson's, 
feettA  he  was  convicted  last  sessions,  that 
chkI  a  pretty  deal  of  noise.     And,  gentle- 
■ca,neh  as  had  notes  of  Mr.  Hales  for  their 
wswiiy,  were  alarmed  ;  Mr.  Haile  heard  of 
liufasMog  others,  and  the  thing  thus  coming 
isheiaipured  into,  it  appeared  plain  Mr.  £d- 
««4k  nd  no  dealing  wiin  them,  but  it  was  a 
faifery  and  an  imposition  both  upon  Mr.  Ed- 
ewdsand  Mr.  Harle.     We  will  call  the  wit- 
HHst,  and  then  we  apprehend,  that  the  thing 
aQ  speak  for  itself,  and  will  appear  a  plain 
lM|cry. 

I$cr).  Wkiimker.  My  lord,  there  are  a  pretty 
■say  indictments,  and  Mr.  Attorney  hath 
•Msd  the  cause :  therefore  we  shall  imme- 
wdy  caU  the  witnesses. 

noBMti  Maddockt  sworn. 

8n].  Wkiimker.  Whom  do  you  live  with  ? 
Uiddncki.  Mr.  Edwards,  ^r. 
Unj.  Wkitaker.  Where  duth  he  live  P 
MU^oekt,  In  Dnke-strtet,  Westmin!4er. 
M.  Wkiimker.    Where  doth  Mr.  William 
Ukver 
MBddorkt.  Within  a  few  doors  over-against 

way  WkUmlur.  Will  yon  give  ns  an  ac- 
•M,  whether  Mr.  Bales  hath  ever  sent  for 
49  ftaaka  to  year  master  f 

Msrfdtrto.    Yea,  8ir,  several  times. 

I«i.  WkiukBr.  What  nuumer  of  franks 
IhayP 


Maddockt.    There  was  alwsyf  some  super- 
scription. 
Serj.  Whi faker,   Vho  had  them  of  you  ? 
Maddocks.  His  man  had  them  of  me.  They 
were  sent  bv  him  to  Mr.  Hales. 

Serj.  Whitaker.  Will  ymi  recollect  whether 
there  was  ever  any  request  to  you,  thnt  tl.ere 
might  be  some  only  free  without  any  euper- 
scription  ? 

litaddocks.  Yes,  Sir ;  there  was  in  the  be* 
ginning  of  July  last. 

Serj.  Whituker,  How  many  were  there  of 
them? 

Maddockt.    There  were  half  a  dozen. 
Serj.  Whitaker.  What  came  of  them? 
Maddockt.    I  have  five  of  them  here.    The 
other,  1  believe,  is  torn. 

Serj.  Whitaker.  Did  you  give  them  to  Mr. 
Edwards? — Maddockt.  Yes,  Sir. 
Serj.  Whitaker.  What  answer  did  he  ffivof 
Maddockt.  He  said,  when  1  delivered  bim 
that  message,  that  he  never  did  such  a  thing  ; 
and  that  be  would  not  do  them  without  a  so- 
perscription. 

Seij.  Whitaker.  Were  there  any  afterwards 
sent  without  a  superscription  ? 

Maddockt.     About  a  week  aHer  he  came 

again,  and  I  told  him,  that  my  master  would- 

not  do  it  without  a  superscription. 

Serj.  Whitaker.  Were  they  after%vards  left  P 

Maddockt.    Thejr  were  left  with 'a  young 

woman  that  is  now  in  Court. 

Serj.  Whitaker.  Are  those  they  that  were 
delivered  to  you  by  her  ? 

Maddockt.  Yes,  Sir :  one  is,  I  believe  torn. 
Those  are  the  other  ^ve. 

Mr.  Hungerjord.     Have  you  been  long  ac- 
quainte<l  with  your  master's  business? 
Maddockt.  Yes,  Sir. 

Mr.  Hungerjord.     Have  you  ever  known  it 
to  be  his  practice  tu  gi? e  promissory  notes  ? 
Maddockt.  No,  Sir. 

Lord  Chief  Baron  Pcngclly.  It  i^  proper 
you  should  ^ive  an  account  where  Mr.  Ed* 
wanis  lives  ? 

Maddockt.  In  Duke- street,  Westminster. 
'  Lord  Chief  Baron.    And  where  doth  Mr. 
Hales  live? 

Maddocks.  Within  a  few  doors,  almost  over* 
against  Mr.  Edwards. 

Jjord  Chic/ Baron.  How  long  since  was  it? 
Maddockt.   I  btrliere  that  it  might  be  three 
or  four  years  ago. 

Att.  Gen.  There  were  (I  apprehend  yoa 
say)  several  that  were  franked  ? 

Maddockt.   Yes,  Sir,  there  were  frequent] r, 
Att.  Gen.  How  long  might  this  continue  r 
Maddockt.    I  believe  several  years.     It  was 
since  the  time  of  his  living  in  our  neighbour- 
hood, which  I  believe,  may  be  about  tnrse  or 
four  years. 

Att.  Gen.    Do  yon  know  of  any  other  bu- 
siness transacted  between  them  ? 
Maddockt.  No,  Sir. 

Mr.  Strange.  You  sa]^  that  these  coferi 
were  brought  and  left  with  the  maid.  Vo 
you? 


S15]  8  GEORGE  II. 

Maddocki,  Yes,  Sir,  these  are  the  same  that 
were  left  with  the  maid. 

Mr.  Strange.  You  saji  yon  delivered  the 
fraoks  to  Mr.  Hales's  servant.    Do  you  not  ? 

Maddocki,  Y<:8,  Sir. 

Mr.  Strange,  What  was  his  name  ? 

Maddocki,  Robert  Hunsdon,  Sir. 

Mr.  StranRc,  Did  yoa  ever  deliver  any  to 
him  himself  r—Mia</£/oc^.  No,  Sir. 

Mr.  Lacy,  Had  the  franks  that  yon  deliver- 
ed the  whole  superscription? 

Maddocki,  Yes,  Sir. 

Mr.  Lacy,  They  asked  you,  whether  there 
were  any  dealings  between  your  master  and 
Mr.  Hales,  besides  this  of  letters.  I  would  en- 
quire of  votty  whether  your  master  acquaints 
you  with  bis  dealings  with  any  other  persons  f 

Maddocki.  No,  Sir. 

Anne  Clarke  sworn. 

Sen.  Whitaker,  Had  you  a  note  of  direc- 
tions for  letters  to  be  franl^  by  Mr.  Edwards? 

Clarke,  Yes,  Sir. 

Serj.  Whitaker.  Who  brought  it  ? 

Clarke,  Mr.  Hale's  servant. 

8eij.  Whitaker.  What  was  his  name  ? 

Clarke,  Robert,  I  think  they  called  him. 

Bmrj,  Whitaker,  Do  you  know  whose  writ- 
ing it  was? — Clarke.  Vo,  Sir. 

Serj.  Whitaker,  We  shall,  mv  lord,  call 
another  witness  to  prove  that  it  was  Mr.  Hales's. 

Serj.  Whitaker,  When  was  it? 

Clarke,  1  cannot  say. 

Serj.  Whitaker,  Was  it  summer  or  winter? 

Clarke.  Summer. 

Serj.  Whitaker,  In  what  month  was  it  ?  • 

Clarke.    I  believe  that  it  Was  in  July  last. 

Sen.  Whitaker.  Did  you  deliver  them  to 
Mr.  Edwards  f-^Clarke.  Yes,  Sir. 

Serj.  Whitaker,  What  did  you  say  to  him, 
or  he  to  you  ? 

Clarke,  I  told  him,  that  Mr.  Hales's  servant 
had  left  that  paper  of  directions  for  the  franks 
that  he  had  desired  ;  and  said  that  his  master 
understood  that  he  would  nut  frank  them  without 
a  superscription,  and  therefore  he  had  sent  that 
paper  of  directions.  He  said  then  that  be  did 
not  care  to  frank  them,  because  Mr.  Hales  had 
both  a  brother  and  a  nephew  that  were  mem- 
bers of  parliament,  and  therefore  had  no  need 
to  apply  to  him  for  franks. 

Serj.  Whitaker.     My  lord,  we  shall   now 

Erove  the  paper  of  directions  to  be  Mr.  Ilaies's 
and- writing. 

Mr.  Booth  sworn. 

Serj.  Whitaker,  Sir,  Are  vou  acquainted 
with  Mr.  William  Hales's  hand- writing  ? 

Booth,  Yes,  Sir. 

Serj.  Whitaker,  Whose  wriliug  do  yon  take 
that  paper  of  directions  to  be? 

Booth,  I  verily  believe  it  to  be  Mr.  William 
Hales's. 

Serj.  Whitaker,  My  lord,  there  is  something 
Tery  worthy  of  observation  as  to  these  direc- 
tions and  covers.  The  covers  are  very  large. 
Tht  dinctuHii  ar«  extremely  abort,  e,  g.  for 


Trial  of  WiUiam  Hales, 


[81ft 


John  Pratt,  esq.  Bristol.  The  whole  direcCioo 
is  but  one  line,  which  wouM  consequently  leave 
a  great  deal  of  room.  Another  is  to  Mr.  Lsvctt 
ofHuntiiMnlon.  And  there  are  two  to  each  of 
these.  The  other  two  to  Stephen  Mitford^ 
esq.  at  Exeter.  The  man  gave  an  acoonnt  of. 
six  covers  sent  to  be  franked ;  there  are  two  la 
each  of  these,  which  very  well  agree. 

Serj.  Whitaker,  You  say.  Sir,  that  thia  it  Ihi 
hand- writing  of  Mr.  William  llalea  f 

Booth.  Yes,  Sir. 

Serj.  Whitmker.  1  would  ask,  whether  ilk 
common  for  a  person  that  hath  a  piumi— y 
note  to  write  his  name  thereon  ? 

Booth.  I  know  not.  Sir,  that  it  is  comHNB* 

Note  of  Directions  read  t 

Two  to  John  Pratt,  esq.  Bristol. 
Two  to  Mr.  Levett,  Huntingdon. 
Two  to  Stephen  Mitford,  esq.  Exder. 

Mr.  Hcrr^e  sworn. 

Serj.  Wkitaker,  Let  the  gentlemen  of  tha 
jury  see  the  directions  and  covers. 

Serj.  Whitaker.  Gentlemen,  you  wiH  slaano 
the  size  of  the  covers,  and  the  shortneaa  of  Ihi 
directions  just  fitted  for  the  purpose. 

Sen.  Whitaker.  Mr.  Harle,  please,  Sr,  la 
take  that  note  in  your  hand,  and  give  no  ■■  ao* 
count  who  you  received  it  from  ? 

Harle.  From  Mr.  Hales. 

Serj.  Whitaker.  When  was  it? 

Harle,  To  the  best  of  my  remembnuMo  it 
was  Juoe  13th  last. 

Seij.  Whitaker,  Will  you  give  us  as  oeosMt 
on  what  account  it  was,  and  what  Mr.  Haht 
said  to  you  when  he  brought  that  note  ? 

Harle,  Mr.  Hales  on  the  ISth  of  Juno  hH 
came  to  me,  and  brought  me  that  note  firoBi  a 
gentleman. 

Serj.  Whitaker,  Where  were  you? 

Harle,  To  the  best  of  my  remembraneo,  at 
Baker's  coffee-house  in  Exchange  Alley.  Bo 
desired  to  borrow  of  me  450/.  upon  the  cr^it 
of  that  note ;  I  accordingly  made  him  a 
draught  on  Mess.  Caswal  and  Mount,  with 
whom  I  left  my  cash,  fur  that  sum ;  for  a  aoai! 
rit^  for  which  he  left  that  note,  and  he  pro* 
mised  that  he  would  pay  it  in  a  few  days. 

Serj.  Whitaker,  Did  he  take  any  particolio 
notice  of  the  indorsement? 

Harle.  Not  much  J  Sir. 

Serj.  Whitaker.  Was  it  then  indorsed  ? 

Harle.  Yes,  Sir,  I  am  sure  it  was ;  for  I 
was  desiretl  to  lend  the  money  on  a  note  so  in* 
dorse^l- 

Serj.  Whitaker,  The  note  then,  upon  this 
occasion,  was  left  in  your  hands  alter  that  it 
was  so  indorsed,  Was  it  uot  ? 

Harle.  Yes,  Sir. 

Serj.  Whitaker.  U|>on  what  occasion  did  ife 
happen  to  be  suspected  or  discovered  ?  Did  yoa 
pay  it  yourself,  or  3^ our  golusmith  ? 

Harle,   Mess.  Caswaland  Mount, on  wl 
I  made  a  druuirlit. 

Sen.  Whiiakcn  HoTO  you  that  dnnglftf 

HarU.  Yea,  Sir. 


« 


Jw  a  MUdaneoMor. 


MWHi^er.    It h«Ui  been  deUtered  up, 

USr-Jfarfe.  Yci»8ir,aiMlcaiieeJled. 

44Kiibr.  Ob  wlmi  occuioa  ? 

[  «Ul  Wkn  I  Mllle  my  ftceouuU  with  my 
illdwap  ny  Doiet. 
ittmgt.  YMiwcrafoiiigtogifeiisan 
■Mtov  yto  aune  to  ratpcct  thw  note  ? 
U  Ilhnk  it  wu  on  September  9, 1788, 
tiMhrhiiifB  Alley  aU  the  morniog,  toy 
IfiVfliig  flw  thither.    At  two  1  went 

,  IpmmL    It  eeeois  there  woe  a  nieeiai^ 


WlOTMffvaiit  fay  Mr.  William  Hales, 
JitmfM  U  my  iroldsmith  4S0/.»  part  ot' 


1^ 


'limf  vUeh  ho  owed  me;  for  be  owed 

H^Moey  on  aocority.      He  weut  to 

[|B«tptti  tbcm  thie  money,  for  which  he 

MiMHnodom  that  Iw  uul  paid  them  to 

Im^wmgy  upon  aeoowit.    Goiog  then  to 

^  M  Gmn,  when  1  came  home  Mr.  Cai- 

IM  m  what  had  happened.     There  it 

l^tad  ihiM  bath  happened;  Mr.  WiL 

llii^  wilh  whom  yon  baTe  transactions, 

'b  m  Ibr  forgery.    He  hath  |>aid  to  us 

[W.  upon  your  aecouot,  which  is  at- 

*  i«r  bands.    It  seetna  there  was  found 

•book  a  memorandum  which  gave 

Isf  hie  paying  that  sum  to  them. 

Mkiiahtr.   Was  this  the  first  occasion 

[  isy flion  ?'^HarU.  Yes,  Sir. 

.  WkiUker.  Wlvat  did  you  do  upon  that  ? 

JAl  I  bad  naked   a   gentleman,  now 

bmt,Maie  daya  before,  knowing  bim  well 

with  Mr.  Edwards,  and  the  affairs 

Eiebcquer,   whether    be  knew   Mr. 

I  band-  writing,  and  whether  he  knew 

bke  Mr.  Edwards's  hand- writing?  He 

4hMieved  that  it  was.      I  indeed  myself 

Mid  tbat  it  was.     Afier  that  Mr.  ifales 

Vths  up  (I  tbiok  that  it  was  the  Weilnes- 

%t  Tburiday  after),  I  went  up  to  the  £x- 

d^tD  that  gtntlemau  to  get  biro  to  go 

l||ieio  Mr.  Edwards.    lie  went  up,  but 

jftlbrirds  was  not  there.  ^Ve  then  weut  into 

^hll,  where  we  met  with  Mr.  Kdwanis,  who 

^Mrito  be  rery  much  Mirprised.     As  to  the 

^faid  be)  I  know  notliiug  of  it.     As  to  the 

H-writiag,  be  could  not  |>ositively  say  whe 

^  11  VM  bis  own  or  not ;    if  (sai«l  he)  it  is 

^ittsd,  it  is  made  an  ill  use  of.     We  went 

^t'iilely  to  the  coffee-house  to  enquire  after 

«ihbert  Hales,  thence  to  the  Cock- pit, 

Jl'lhice  to  his  house ;    but  met  not  with 

J^l  tben   left   Mr.    Wright  atui    Mr. 

''irit.     i   told  them  that   my  buitiness 

^nd  me  to  go  into  the  city.    They  re- 

*N  to  meet  Mr.  liobert  Hales,  and  enquire 

^h«  whether  it  was  bis  note  or  not. 

L  C.  BcTOM.  Head  the  note  distinctly. 

X«te  read,  "  Matf  18, 1728. 

**  I  promise  to  pay  to  Samuel  Edwards,  esq. 
*  trur,  the  sum  of  eight  hundred  noutids 
*i|^  three  months  after  dute,  for  value  re- 
^hl.  KoBERT  Hales.'* 

bdofiement,  **  Pray  pay  to  the  order 
of        foryc  value  received. 

**  ISamuel  Edwards." 


A.  D.  179^  [tlS 

Draught  read,  «*  kt.  Mess.  Caswal  and  tfoont. 

«<  June  13, 1798.  Pay  to  Mr.  William  Hales 
or  boarer,  on  demand,  four  hundred  and  Afty 
pounds.  RoBBtT  Harlb." 

X.  C.  Baron,  Sir,  you  say  that  yoo  are  ae« 
qnaintcd  with  the  band-if«  riling  of  ftlr.  EdwaMf. 
do  you  not? — Har/<e.  No,  Sir.  ^ 

Att,  Gen,  My  lord,  we  beg  that  the  gentle- 
men of  tlie  jury  will  look  upon  the  indorse* 
meut.  But  before  it  be  put  intd  their  hands,  { 
would  make  an  observation  thereon .  It  ap- 
peareth  by  the  end  of  the  paper  that  it  is  cut 
off  from  something  else.  It  is  not  straight  as 
it  would  be  naturally,  hot  seems  cut  off  0Miqae>' 
ly  :  And  there  is  the  tail  probaUy  of  a  letter 
of  the  direction  of  the  cover  whence  we  pre- 
sume it  cut  off.  Then  the  wurds,  *  Pray  pay 
to  the  order  of,*  at  a  distance  from  the  othc^ 
words,  *  for  the  valoe  received.'  There  is  this 
material  also,  that  the  words  *  for  the  valne  re* 
ceived'  are  not  usual  words  in  an  indorsement ; 
when  the  words  *  value  received'  are  mentioned, 
still  more  unnsnal  to  put  in  the  word  *  the'. 
But  the  word  ^  free'  being  there,  there  must  be 
some  way  contrived  to  nse  those  letters :  An  e 
is  therefore  crowded  in  between  the/ and  the  r : 
And  tben  the  y  seems  to  be  a  much  blacker 
ink  tlian  the  rest :  And  then  as  to  the  two  re*!, 
the  one  of  them  the  y  is  drawn  from,  and  the 
otiier  of  them  stands  for  the  other  part  of  the 
contraction. 

Serj.  Whitaker.  liook  on  it,  gentlemen,  and 
you  will  find  it  as  mentioned. 

Att.  Gen,  Observe,  gentlemen,  over  it  them 
is  a  stroke  or  hook. 

Mr.  John  Spicer  sworn. 

Att,  Gen.  Mr.  Spicer,  What  employ meni 
are  you  in  under  Mr.  Edwards  f 

Spicer,  A  clerk,  Sir,  in  the  Exchequer. 

Att,  Gen.  How  long  in  that  capacity  ? 

Spicer.  About  ten  years  in  that  capacity: 
But  in  ail  I  have  served  him  for  24  years. 

Att.  Gen.  Have  you  known  in  all  that  time 
any  mouey-dcalin^s  between  Mr.  Edwards 
and  Mr.  itobert,  or  Mr.  William  Hales  ? 

Spicer,  No,  Sir. 

Att,  Gen,  If  there  had  been  any,  do  yoil 
think  that  you  bhould  have  known  it? 

Spicer,  Yes,  Sir,  I  believe  that  1  should ;  for, 
as  to  affairs  of  that  nature,  1  believe  that  J  know 
as  much  as  auy  except  himself. 

Att,  Gen.  Look  upon  that  note.  Do  you 
take  any  part  of  that  note  to  be  his  hand* 
writing? 

Spicer.  The  name  is  his ;  and  they  I  believe 
is  his.  As  to  the  other  letters  they  are  so  al- 
tered that  I  cannot  say.  *  Value  received'  is 
not  his. 

Att.  Gen,  Are  you  acquainted  with  his 
writing  ? — Spicer.  Very  well,  Sir. 

Att.  Gen.  Have  you  seen  him  frank  letters? 

Spicer,  Yes,  Sir. 

Att.  Gen.  What  is  his  method  of  franking? 

Spicer.  •  Free  Samuel  Kduards.* 

Att.  Qen,  Doth  he  write  the  word  *  lire^*  * 


219J  d  G£ORG£  II. 

Spicpr.  YiM,Sir. 

Att.  Gen,  What  sort  of/  doth  he  rnhkt?, 
'  Spker,   A  sort  of  double /just  such  as  is 
faere. 

Att  Gen,  Do  you  take  the  letter  o  to  be  his 
hand'Writiog? 

Spker,  It  is  an  altered  letter.  It  was  some- 
ihing  else  turned  into  an  o. 

Ait,  Gen.  The  r,  what  is  that,  doth  it  not 
«ceni  to  bare  been  another  letter? 

Spicer,  Yes,  it  seems  altered  from  another 
ktter;  but  bunglinfflv  done. 

Serj.  Whitaker,  We  wiU^  my  lord,  call  oueof 
Mr.  Caswal'a  apprentices  to  prove  that  th» 
^ught  hath  been  complied  with. 

Mr.  George  Branthwait^wom. 

Serj.  Whitdur.  Do  you  look  upon  that 
flight.  00  yoa  remember  whellier  it  was 
«?er  brought  to  you,  and  by  whom  ? 

Brant^aU,  I  beliere  it  was  brought  by  Mr. 
Hales. 

Serj.  WhUaker.  To  your 

BratUhwaU,  Yes,  Sir,  and  it  was  marked  by 


8eij.  Whitaker.  What  had  he  for  it  ? 

Branthwait,  He  had  ofme  two  notes.  One 
was  for  850/.  the  other  for  S90/.  which  was 
470/.  and  he  brought  besides  this  draught  two 
notes  of  Wanley's  for  SO/,  which  made  the 
balauce. 

Serj.  WhUaker,  Whom  were  they  payable 
to? 

Branthwait,  One  to  oue  Calthrope,  and  the 
•tber  to  himself. 

£.  C,  B,  You  say  there  were  two  notes  you 
ga? e  him.  Whom  was  the  250/.  note  payable 
to? 

Branthwait.  To  Mr.  William  Hales. 

L,  C.  B,  And  who  was  the  320/.  note  made 
payable  to? 

Branthwait.  To  one  Charlton  Thrup.  He 
gave  me  this  draught  of  Mr.  Uarle'tf  tor  250/. 
and  notes  of  twenty  pounds. 

X.  C.  B.  Whom  did  you  say  the  220/.  note 
was  onade  payable  to  ? 

Branthwait.  To  one  Charlton  Thrup. 

Att.  Gen.  My  lord,  we  have  done  with  our 
evidence. 

X.  C.  B.  Well,*  what  do  you  say  to  this  ? 

5eij.  Darnell.  I  have  nothing  material  in 
mine  instructions ;  therefore,  i  shall  not  trou- 
ble your  lordship. 

Mr.  Lacjf,  1  take  leave  to  observe,  that  it 
doth  appear  that  no  prejuilice  is  done  by  this 
note.  The  450/.  borrowed  on  it  hath  been  re- 
paid. 

Att.  Gen,  Mr.  Hales  owed  Mr.  Harle  uio- 
ney  upon  other  accounts,  and  he  had  it  upon 
account:    And  besides,  it  is  attached  in  the 

S'oldsmith's  hands,  and  it  was  on  the  very  same 
ay  that  he  was  taken. 

X.  C.  Baron.  Gentlemen  of  the  Jury,  this  is 
an  indictment  against  William  Hales,  gold- 
amitb,  for  a  very  great  misdemeanour.  It  is 
for  fbiging  an  indorsement  on  a  promuiory 
note  Ibr  600/.  for  the  chaipog  of  the  pcnon 


Trial  of  WaUamHakB, 

indorsing  with  the  payment  of  this  son 
tlie  publishing  of  this  indorsement  as 
one,  knowing  it  to  be  so  forged.  It  is 
great  offence,  a  misdemeaooor  of  the  ! 
nature ;  not  -only  as  it  afltos  particuli 
sons,  and  chai^^es  the  person  whose  n 
made  use  of  with  the  pay  noent,  but  as  i 
stmctive  to  all  commerce :  You  are  tfa 
to  consider  what  account  the  defends 

Sive  of  it.    The  indictment  sets  forth  tl 
efendant  bad  in  iiis  custody  a  certain  i 
a  writing,  purportiiigto  be  a  promissor 
with  the  name  of  Robert  Hales;   by 
note  it  was  supposed,  that  Robert  Halt 
mised  to  pay  to  Samuel  Edwards,  esq 
order,  the  sum  of  800/.  within  three 
after  date.    And  upon  this,  the  chari^ 
indictment  is,  that  the  defendant,  witfa 
^tion  to  charge  Mr.  Edwards  with  tl 
ment  of  the  money  contained  in  tbia  ii 
note,  and  to  delraud  and  deceive   hi 
others,  on  the  iSth  day  of  June  did 
and  deceitfully  forge  and  counterfeit  a 
indorsement  on  thisnote  in  these  Englisl 
following:  **  i^y  psy  to  the  order  of 
the  value  received,"  over  the  name  of 
Edwards,  as  if  subscribed  to  that  indors* 
and,  that  knowing  the  same  to  be  a  fur| 
counterfeit  indorsement,  he  published  tl 
in  order  to  deceive  several  persons,  the 
subjects,  as  a  real  indorsement,  as  wc 
defraud  the  said  Samuel  Edwards,  esq. 
in  order  to  prove  this,  the  counsel  ga^ 
account  of  the  circumstances  of  the  del 
the  character  of  Mr.  Edwards,  the  ac 
ance  between  them  as  neighbours, 
shew  you  the  circumstances  of  the  fai 
have   called  several    witnesses:    Firs 
called  a  servant  of  Mr.  £dwards*s,  wh 
tiooed  that  he  had  lived  some  coosideral 
in  Mr.  Edwards's  service ;  during  wbi 
the  defendant,  Mr.  Hales,  hath  irequci 
several  years,  sent  to  Mr.  Edwards 
franks  delivered  him  in  the  name  of  1 
wards,  who  hath  for  some  years  been  a  i 
of  parliament,  in  order  to  send  them 
the  postage.     It  appears  that  this  ha 
done  for  several  years;  and  the  usui 
was,  when  Mr.  Edwards  had  received 
rection  of  the  name  of  the  person,  he 
wrote  the  .whole  superscription,  and  tli 
scribed  to  frank  it    '  Free  Samuel  Ec 
He  tells  you,  that  in  the  beginning  of  Ji 
several  covers  were  brought  to  him  for 
made  up  as  you  may  perceive  prett; 
The  covers  were  brought  orer  to  Mr.  Ei 
bouse  by  a  servant  ot  Mr.  Hales*s.    T 
sage  was,  that  Mr.  Hales  desired  soon 
upon  these  covers,  particularly  desirii 
to  be  franked  without  any  superscriptic 
saith,that  these  were  left  in  this  numi 
were  all  delivered  to  a  servant  of  Mr.  1 
with  this  desire,  that  he  would   on] 
thereupon  *'  Samuel  Edwards  free  :'* 
rest  might  be  left  to  be6lled  up  by  Mr.  ] 
be  thought  fit    He  tdb  yoa,  thai  w 
mastor  came  honei  hit  maater  tunriii 


0  M'udemtann. 


UmMiniiewholeiupef  , 
lo  ilo  this;  anJ 
r«m  mnaiDnl  wilbout  frank- 
b  wiihIiI  nut  ii(xi>iiim'Hlite 
Mr.  Bile!,  in  ihal  maiiDer  wiili 
to  kaad.  uid  Icate  llie  Test  lilniik  lur  anutiier 
|MMUfi<l  U|i  us  lip  iliDuelit  111.  This  OUll 
imj  pWriilly  ilorir;  Hr.  EilwHrtIa,  wlio  in  h 
■bAmm  IB  husDni,  iiii|[|j|  well  spprtliend 
MINSfpi'ituiiily  niit(bt  Iw  liereby  girpn  (o 
MHfw^tf*  lliM  H  might  nulbeiii  l)ra)>ni*«r 
■•■nmul.  Tliia,  gentlemen,  U  made  luc  of 
>p«r  uf  an  attempt  bv  ibe  ilelrndanl.  to  gel 
Ntt  wrl  •■'  I'rankt  into  hit  power  lo  make  uie 
#li  Mcb  n  MriK>*«  as  (liii.  The  next  wiineM 
iMtbry  ulU  It  Ar>Ke  CUrke,  who  Faith 
dMikitlilwiniea  semnito  Mr.  Edwordf, 
wrillen  Ij  Mr. 
lat  ihii  was  brought  to 
of  Mr.  Edwanit,  with  a  deure  tu 
'  fr«nk»  liiiectfd  lo  cai^h  of  those 
*i>  to  Mcb  ut'  tbeoe  lliree  several 
Mite  aailb,  that  it  was  soniR  lime  lait 


h4  i^  pniiiiKirib 
Bi^  m4  M<ih,   il, 


M^M*.  *l>e  thintit  atwiil  July. 
te  >bm  her   mtsurr.   Mr.  Kdn: 


Kite  SI 


(titiog 


a  bim  :  and  Mr.  Kil- 
ir  accommodaiinff  Mr. 
tlii-ae  persons.  The 
Ihli;  Mr.  Hale*  (Mid 
a  nepliew  that  are 


Mi  ouh  franki 
MBIhat  iMfrave  was  ihi 
ItflMkbolii  a  braiher  and 
•i^wa  iif  the  HiniBv  iil  tJ»mmnna  ;  anij 
IhniM  ha  need  mil  «eud  lo  me  tiir  franks, 
^«  ke  vn»y  bare  Ihein  from  his  own  rela- 
tWI  b*  Umrhre  declined  il  at  Ihal  time. 
Itat  vera  tin  ilirectinnt :  Two  to  Mr.  Lervll 
4  laMiiiirdon,  Iwo  m  Jidin  Pratt.  va\.  at 
h»t,lHu  to  Stephen  Mitt'iinl,  e«q.  at  Biiilnl. 
takairii.  to  c^rrobnratt  this  evidence  Uinl 
«»Ma  nuc  rroni  the  defendant  Mr.  Hales, 
kr.tlMilt  It  called.  He  ia  aike<l.  whether  he 
•wdl  aoqiMiiiled  witli  the  hand-writing  of  the 
M«rfM>l,Ur.  Ilaln?  Hesailh  tbalbeia,  and 
iH  bp  •cnljr  briiere*  that  this  note  Is  bis 
tori.vntm^.  It  balh  bt«n  tririerTed  by  Mr. 
that  there  veeitiH  to  have  beeii  some 
tlwfnnn  wherein  it  is  wrote  being  >ery 
an  opfKirtiinit;  lor  an  alteraiioQ ; 
if  ibaae  directionn  a  very  short,  and 
«p  U  oMift  but  one  line  on  the  su- 

oaUnUrot  tlie  cover;  ihal  there 

m  a  conaldenble  space  lelt,  so 
e,  MaiDurl  Edwards,  ivna  wrulr, 
^■B  wuold  bate  been  a  sulficient  space  oi' 
na  In  wnte  a  note  nr  any  ihintf  oter  it. 
BM  b  the  afaierraiion  thai  hath  been  made 
^Xlbia  no«i-  •■'  drmlions.  Aller  this  they 
fttta  Mr.  Kiitirii  Hifk',  who  it  secretary  to 
tiwOsM  bank,  !■>  hiirpm  In  the  jiarliculaT 
k.  Ue  wilb,  that  thii  note  wn«  on  the  )3lh 
'lancUit  brau^ht  and  delivered  to  bim  by 
kiMn4a>t  Mr.  \Vitl>am  Hale*.  He  sailh, 
kt  he  was  then  d1  Raker's  mifiee- bouse  in 
h*Mfp-alUy  :  ibut  Ibe  dufcndUDI,  Mr. 
■A^  ^nM  la  hini,  «iid  produced  Ibis  very 
%tf  WWt.  payablr  to  Sniniiel  Edwards,  mq 
~"     "■  lubsmbcd  Robert  >lah>«, 

"  iidwardt, 


A.  D.  17S9. 

iitd  de«ired  him  lu  advance  bin  i50!.  upon  llie 
credit  of  that  note;  Ihal  seeing  a  proinisaorf 
Dote  njnde  payable  lo  Numiiel  Eilwnrda,  esq. 
-.nit  imloneit  by  the  said  Sninuel  Edwards,  esq. 
Ilia  appeared  to  him  «ii<iioieut  seouriiy  lu  lend 
4Si)f.  upon  ;  Ihal  tie  did  tltereupon  cnntply 
>vilh  ilierequnt  uf  the dufemlaat,  Mr.  Willinoi 
Hales,  III  ndvsiice  bim  thaltumi  ihatbedr«w 
a  draught  lor  i(  an  Casual  and   Moant,  wbo 


settling  of  his  accuootii  with  bis  goldsmiths  ; 
that  at  that  lime  when  Ihe  defendaut  brouKbi 
this  note  to  him,  this  very  note  woa  delivereil 
la  him,  with  tbis  very  indursemeiit  Ihal  is  novr 
upon  it, 

"  Tray  pay  to  llie  Order  of  for  j« 

value  r<:cdred  Simuei.  Edwards." 

lie  saitb,  that  he  is  sure  that  it  was  (bus  in- 
ilcirsnd  when  il  was  left  with  him,  he  being  de- 
sired to  lend  Ihe  money  on  a  note  si>  imlorsed  i 
Ibat  it  hath  l<een  in  his  cnstody  ever  since,  sn 
chat  he  ia  snre  iliere  hath  been  no  alleralton 
made  tberean  since  lliat  il  itas  delivered  unin 
him.  You  may  n'membrr  that  he  was  parti- 
GiiUrly  asked,  are  yon  sure  that  il  was  indnrwd 
when  il  »as  delivered  you?  Hesailb  that  b* 
is  sure;  and  indeed  the  thing  bespeaks  itaelf. 
'  n'hen  a  note  is  made  payable  to  a  particular 
|)efBon.if  any  other  person  brings  il,  every  one 
expects  lliat  Ihcrc  sbotild  b«  an  initorsement 
to  inlitle  any  pertiiin  that  Is  not  the  very  person 
to  whnm  il  wni  made  payable.  1  am  there- 
fore lure  (saiih  he)  ihal  it  was  so  indorsed: 
anil  Bs  Mr.  Edtrards  was  a  iierson  of  rerj 
great  dealings  and  considerable  sulislance,  anil 
BO  likely  to  liave  sach  a  note  made  jnyabla 
to  hira,  I  therefore  gave  credit  to  this  note  aa 
a  sufficient  security  to  reimburse  me  the  ihQt, 
i*hiGb  1  advanced  thereupon.'  This  tact  ha 
tells  you  was  thus  transacted  at  thai  time; 
and  he  ia  sure  that  he  received  it  from  Ibe  dc- 
feiidant  thus  inilorsed,  and  that  the  drtendant 
hath  hail  the  benefit  uf  the  draught  which  ha 
gave  him  on  the  credit  ihereol.  Mr.  Harle 
hath  ullowed  this  in  settling  his  account*  with 
his  goldsmith.  Upon  ibis  the  nule  hath  been 
read  lo  sbeir  you  the  purport  thereof,  and  the 
indoraemeni  thereon.    The  note  is  this, 

"  Wau  J3,  1728, 
*■  1  promise  lo  pay  to  Samuel  Edward*,  esq. 
or  order,  the  sum  of  eight  hundred   pounds, 
within  llitee  tnoutb*  after  date,  for  value  re- 
ceived. "  RoaERT  HtLEa." 


Tlicn  upon  the  back  of  Ihe  m 


elben 


stbit 


Mr.  llarle  goelb  on  In  the  account  which  be 
gives  you,  and  snitli  thai  Ibis  nule  was  leti  ia 
his  hands  in  June ;  and  that  ou  Sept.  V,  after, 
he  was  in  Ekc  ha  age- alley  aJI  the  luorniug  till 
bIhiuI  two  ;  that  theie  was  a  message  left  for 
him  at  Uakci't  colTee-hoiite,  bat  he  received  jt 


8CS] 


3  GEQKGfi  n. 


not  there ;  that  he  went  honie,  and  heard  that 
there  was  a  message  left  for  him  hy  the  de- 
fendanc,  Mr.  Halei,  at  Baker's  coffee- hoasej 
that  he  went  out  in  the  afternoon,  and  had 
not  a  particular  account  of  the  message  till  he 
came  home.  The  message  was  mm  Mr. 
Hales,  that  he  bad  that  morning  paid  to  his 
goldsmiths  Caswal  and  Mount  45o2.  on  his  ac- 
count: Mr.  Harle  tells  you  that  there  was 
more  money  due  to  him  on  security.  So  much 
money  was  then  pai<l  in  discharge  of  so  much, 
part  or  money  advanced  by  him  to  Mr.  Hales, 
and  It  wss  the  exact  sum  which  had  been 
advanced  on  the  Idth  of  June  on  the  credit  of 
this  note.  He  tells  you,  that  in  the  erening 
Mr.  Caswal  came  U>  biro,  and  told  him  there 
was  a  melancholy  account,  that  a  sad  accident 
had  happened:  for  Mr.  William  Hales,  the 
person  tnat  had  paid  them  this  money  on  his 
account,  was  taken  up  for  forgery,  and  this 
money  was  attached  in  their  bands  for  to  pre- 
yent  bis  issuing  it  out.  Mr.  Harle  tiills  yoo, 
that  this  was  the  first  discovery  that  bo  had  of 
the  particular  fact,  that  gave  him  oecasion  to 
make  the  more  particular  enquiry :  he  had  in- 
deed two  or  three  days  before  sfioke  to  a  ^n- 
tlemaa  of  the  Exchequer,  one  Mr.  Wright, 
Imd  shewed  him  the  indorsement ;  and  having 
tooaesttspicioo,  asked  him  whether  lie  was  ac- 
qaauitnl  with  Mr.  Edwards's  hand,  and  whe- 
llier  be  thought  that  that  was  his  hand- writing  ? 
Mr.  Wright  tho«g;|it  it  was  a  little  odd,  uav 
joaMbiog  di6Ment,  but  believed  thai  it  was 
Mr.  Edwanls's  hand,  aa  Mr.  Harle  himself 
also  thooght  that  it  was.  He  saith,  that  after 
Ibat  the  defendant  was  apprehended,  he  went 
to  Mr.  Wright  to  desire  him  to  go  with  him, 
that  they  might  have  from  Mr.  Edwards  more 
particular  satisfiiction.  They  went  and  met 
with  Mr.  Edwards,  in  Westminster- hall, 
shewed  him  the  note,  asked  him  whether  he 
knew  of  it,  and  whether  it  was  hu  indorse- 
ment? Mr.  Eilwards  waa  very  much  startled, 
end  said,  that  lie  never  gave  any  such  note, 
and  knew  nothing  of  it.  Mr.  Harle  asked  him 
whether  the  name  wss  bis  liand- writing?  He 
said  that  if  it  was,  an  ill  use  waa  made  of  it 
Mr.  BUwanIs  took  a  copy  of  it,  and  kept  it 
by  him.  The  note  hath  been  read  to  yoo,  and 
appears  to  be  a  promissory  note  in  the  name 
of  Mr.  Robert  Hales,  for  800/.  payable  in  three 
months,  to  Samuel  Edwards,  esq.  The  iudorae- 
meot  is 

**  Pray  pay  to  the  order  of  for  y« 

value  reoeived,  »Samuel  Edwards." 

Gentlemen,  Ufion  the  producing  and  reading  of 
this  note,  Mr.  Attorney  bath  made  several  ob- 
servations on  the  manner  of  m  riting  it.  You 
have  bad  the  inspection  of  it,  and  something 
very'  particular  appears  to  every  one's  view.  It 
is  by  the  uounael  for  the  prosecutor  supposed, 
that  this  mtie  must  be  formed  from  part  of  a 
iraok  cover  signed  *  Ifree  Samuel  Edwards,' 
Jfree  being  turned  ■  into  far  ^  value  received ; 
that  there  is  the  Foraainder  of  anoiher  letter. 
Awl  yen  may  ehs^iTe  erbethcr  there  is  east* 


Trial  of  WiUiam  Hales, 

▼edge  or  any  thing  of  that  oatvte,  thi 
h  to  have  been  the  outside  of  a  sheet 
All  the  edges  indeed  seem  to  be  so 
dean  as  a  paper  that  is  cut.  Th( 
ment  begins,  «  Pray  pay  to  the  ordei 
for'  then  comes  y«,  and  then  a  laigi 
between  that  and  *  value  received.' 
seems  pretty  extraordinary  if  any 
honestly  writing,  and  had  a  paper  not 
before,  that  they  should  write  in  thi 
that  the  word  y«  should  be  tacked  to 

*  for,'  and  put  at  such  a  distance  froi 
reeeived.'  *  Received'  follows  *  vali 
diately  in  a  more  plain  writing :  be 
unusual  to  make  use  of  the  word 
*- value  received  ;'  but  they  say  it  is 
nerally  *  value  received.'  You  ha 
stance  in  the  note  itself;  the  conclui 
note  is  *  value  received  :'  and  I  belir 
aervation  is  just ;  that  it  is  not  so  us 

*  For  ye  value  received.'  But  the  ol 
of  the  counsel  was  this,  that  there  v 
cessity  of  this  in  order  to  aocomm 
leuers  to  the  forgery  ;  as  the  words 
they  exactly  suited.  And,  gentlem 
is  of  a  paler  ink  than  the  or,  and  thi 
thicker,  and  seem  of  a  deeper  ink. 
were  two  m's  before,  the  alteration  an 
the  other  letters  roust  occasion  the  tb 
these  letters,  and  their  seeming  of 
ink.  Other  letters  being  to  be  supc 
they^  must  of  necessity  be  thicker  ai 
than  the  first  letters.  Here  is  a  ver 
sort  of  an  r,  and  the  o  seems  very 
the  end  of  the  r  is  something  made 
assist  to  make  the  upper  part  of  the 
doth  not  stand  cleverly.  And  you 
that  part  which  is  the  head  of  the 
thicker  than  the  other  part  that  mal 
y.  And  then  on  the  side  or  one  si 
the  y  there  is  a  sort  of  e  put.  You 
how  improperly  it  stands.  It  is  not 
rectly  over  the  y,  which  is  the  way  8 
of  writing  '  the'  short;  but  it  com 
bottom  ot  the  head  of  the  y.  So  tha 
men,  these  are  the  observations  that  I 
made  by  the  counsel.  You  have 
note,  and  may  observe  upon  it,  wh' 
think  these  observations  plain,  proper 
Upon  this  occasion,  another  servai 
Edwards  is  called,  one  Mr.  Spicer. 
that  he  hath  been  a  clerk  in  the  £ 
above  ten  years,  but  in  the  whole  in 
wards's  service  upwards  of  30  yeitn 
is  well  acquainteo  ivith  bis  public  de; 

Krivate  transactions  in  money-  matters 
e  never  knew  or  heard  that  he  had  an 
dealings  with  the  defendant,  which  h 
he  should,  if  there  had  been  any,  being 
and  acquainted  with  his  muney-dealii 
he  saith,  that  as  to  the  name  Samuel 
be  believes  it  to  be  Mr.  Edwards 
hand- writing,  being  very  well  acquai 
his  hand.  And  he  saith,  that  as  I 
doTMflMBt,  he  believes  that  the  /  k 
Aot  the  other  letters ;  that  he  is  aati 
<  ?atae  KOBived'  is  aoC  Mr*  Edsmda' 


i 


tiSj 


Jw  a  Misdemeanor* 


A.  D.  1729. 


[S26 


And  he  nitht  that  the  o  aud  r  he  doth  not 
tike  In  be  Mr.  Edwards's  hanJ-writiogf,  but 
w  akcffatioD  from  lonething  that  Mr.  Ed- 
wards had  wrote  before ;  that  the  osual  way  of 
Hr.  Edwwde  frankiiiff  iv  *  frce^  with  a  ^  as 
ynjfree  ;  and  that  the  o  appears  to  be  made 
art  tf  an  altered  letter-  So  Uiat  this  ia  a 
fnfet  tbscnration,  that  there  is  ao  alteration, 
M  ihcjf  batiere  upon  their  oaths.  He  saith, 
thUja.kuifirUnffly  done;  that  he  apprehends 
been  mentioned.  AVeJI,  ano« 
called,  Mr.  George  Branth- 
t  to  Mess.  Caswal  and  Mount, 
that  thia  draught  was  brought  to 

r  bj  the  defendant  himself,  becanse 

ke  kath  pot  bia  mark  upon  it,  as  is  proper  for 

BMsas  of  aoeh  deaiings ;  that  that  mark  of 

Hsl  Ibc  bottom  remmds  him  that  the  defSm- 

tet  hrouglit  it.    Upon  the  bringing  of  this 

ti^bf,  be  bad  two  notes  from  this  witness 

SB  aeeount  of  his  master ;  one  was  for  S50/. 

Ar  SSO/. :  that  came  to  470/. :  there- 

ihe  deficiency  of  this  draught  was  to  be 

'  with  another  to  make  up  that  sum 

.   Therefbre,  he  saith,  that  he  brought 

df  Wanley*s  for  30/.  which  made  up  the 

The  note  tor  250/.  he  saith,  was 

laajable  to  the  defendant  himself;  and 

ite  it  990L  to  one  Charlton  Throp ;  and 

ta  al  tfaia  time  the  draught  and  Wanley's 

era  delif  ered  to  him  for  these  notes  on 

afileal'.  Caawal  and  Mount.    T^is  is 

«it  given  by  them.    The  defendant 

and  nis  counsel  are  here.    Nothing 

is  aaid  by  them  in  defence,  only  Mr. 

lacy  osentioneil  that  there  is  no  damage  done 

ky&isDOto.  the  450/.  borrowed  on  it  being 

icpai    To  this  it  was  replied  by  Mr.  Attor- 

SIT.  thai  the  money  was  paid  upon  account, 

fkin  being  other  monies  due  to  Mr.  Harle  on 

MBsrity;  and  besides  it  is  attached  in  Mr. 

Hirie't  goldsmith's  hands,  to  prevent  its  being 

iMcd  out.     Gentlemen,  you  will  observe,  that 

iftlus  was  a  real  indorsement,  it  would  be  an 

Mwrance  of  pacing  the  whole  debt     Who- 

Mwer  iadoraeih  a  note,  whereof  no  part  is 

fH4,  is  liable  to  the  whole.    Therefore  the 

^oKtioQ  is  not,  whether  or  not  this  money  was 

ptJ'  But  whether  here  is  not  an  engagement 

tipay  the  note,  which  the  re -payment  of  the 

y  borrowed  thoreou  is  do  fence  against  f 


Therefore  if  the  money  had  been  repaid,  that 
had  been  no  acquitting  of  the  crime.  That 
will  no  more  discharge  a  person,  than  if  a 
felon  should  say  that  he  is  acquitted  because 
the  goods  are  restored.  The  behaviour  after- 
wards is  not  a  sufficient  acquittal  of  a  crime. 
And  consider  when  thai  was.  It  was  not 
before,  but  upon  the  Monday,  the  very  day 
that  he  was  apprehended.  Then  the  message 
was  left,  and  the  money  paid.  You  are  to 
consider,  therefoi^,  whether  this  did  not  arise 
from  an  apprehension  and  fear  of  a  discoveiV« 
in  order  to  clear  things  as  well  as  he  could  ? 
Gentlemen,  as  there  is  sufficient  evidence  to  fix 
this  upon  the  defendant,  so  hath  he  not  proved 
how  he  came  by  this  note.  lie  bath  not  called 
one  witness  to  shew  that  he  had  any  money- 
dealings  with  Mr.  Edwards,  or  that  he  received 
it  of  any  other  person ;  but  it  is  left  on  the 
evidence  given  by  the  prosecutor.  Therefore, 
there  can  be  no  doubt  in  the  matter.  If  a 
person  is  silent  to  t^ie  charge,  and  cannot  five 
you  any  satisfaction  as  to  it,  it  stands  as  tuUy 
fixed  upon  him  as  if  any  had  seen  him  write 
the  indorsement.  Therefore,  gentlemen,  you 
are  to  consider,  whether  any  thing  appeara  to 
aflbrd  the  least  presumptiou  that  this  waaa 
true  indorsement  made  uy  Mr.  Edwards,  for 
value  received  by  him?  It  is,  gentlemen,  an 
offence  of  a  very  heinous  nature,  and,  if  not 
suppressed,  must  tend  to  hiotler  all  commerce 
by  bills  and  paper-credit.  If  this  be  suffered 
to  increase,  none  can  take  such  a  note,  unlesa 
he  goeth  to  the  person  himself.  It  will  render 
it  insecure  to  carry  on  commerce  by  notes  or 
bills.  As  to  au  indorsement  of  this  nature, 
though  it  was  not  mentioned,  it  is  proper  for 
roe  to  take  notice,  that  though  the  name  be 
not  named,  it  may  be  made  to  any  person. 
The  person,  in  whose  possession  it  is,  can  go 
and  receive  the  money.  So  that  the  indorse- 
ment  is  complete  authority  tu  impower  the 
person  in  whose  possession  the  note  is,  to  re* 
ceive  the  money,  and  likewise  to  charge  the 
person  that  so  indorsed  it  with  the  ie-imburse« 
ment  of  the  money.  Therefore,  gentlemen, 
the  crime  and  offence  seems  complete.  U|M)n 
this  evidence,  it  doth  not  seem  to  me  that  there 
can  be  auy  doubt  with  you^  whetlier  he  be 
guilty  of  this  fact  or  not. 


▼OL.  XflL 


897]  S  GEORGE  II.        Trial  of  Wm.  Hales,  far  a  Misdemeanor. 


473.  The  Trial  of  William  Hales,*  fot  a  Misdemeanor,  in 
taining  the  Sum  of  Four  Hundred  and  Fifty  Pounds, 
Mn   William    Harle,    by   false   Tokens  rf    3  Georgi 


A,  D.  1729. 

Jury  sworn  ova  agaiD. 

Clerk,  OyEZ,  Oyez,  if  way  one  can  in - 
Ibrm,  &c 

Gentleiiien  of  the  Jary,  William  Hales  ttaadt 
itidicted  by  the  name  of  William  flales»  kc,  Ibr 
falsly  and  deceitfolly  obtaining  the  sum  of  450li 
of  Mr.  William  Harle  by  a  false  token,  to  wit,  a 
promissory  note  in  the  name  criT  Mr.  Robert 
Hales,  whereby  the  said  Robert  Hales  is  sup- 
posed to  engage  to  pay  within  three  months 
afler  date,  the  sum  of  800/.  to  Samuel  Edwards, 
esq.  with  a  counterfeit  indorsement  on  this  note 
to  the  great  damage,  &c.  To  this  indictment 
be  hath  pleaded  Not  Guilty. 

Mr.  Strange.  This  likewise  b  an  indictment 
iigahist  the.  defendant  Mr.  William  Hales,  and 
is  for  falsely  and  deceitfully  obtainmg  a  sum  of 
money  of  Mr.  William  Harle  by  a  false  token. 
And  it  sets  fbrth,  that  the  defendant  haying  in 
his  possessioo  a  promissory  note  of  Mr.  Robert 
Haies's  for  800/.  payable  m  three  months  afler 
date  to  Samuel  Edwards,  esq.  with  a  fbr|g[ed  in- 
dorsement thereon  in  the  name  of  the  said  Sa- 
muel Edwards,  esq.  did  falsly  and  deceitfully 
obtain  of  one  Mr.  William  ftarle,  the  sum  of 
450/.  on  the  mid  note.  Tliisis  laid  to  be  to  the 
great  damage,  &c. 

Mr.  Hungerford,  May  it  please  your  lord- 
ship, the  fact  charged  is  the  ?ery  same  as  in 
the  former  cause  already  heard,  only  upon  a 
different  law,  Sd  Hen.  8.  There  was,  it  seems, 
•o  long  agone  an  abominable  practice  of  ob- 
taining money  by  false  tokens.  The  act  of  par- 
Kameut  hath  prphibited  that  practice,  and  made 
It  penal.  There  is  but  one  witness  we  shall 
trouble  your  lordship  with. 

Mr.  HarU  sworn. 

'  Mf.  Hungitford,  Mr.  Harle,  pray  gire  an 
account  to  my  lord,  and  the  jury,  when  you 
first  saw  that  note,  and  what  money  you  paid 
«pon  it. 


» >  I  ■ 


*  See  the  preceding  and  following  Cases. 
f  These  Trials  were  taken  in  short- hand  bv 
•rder  of  Mr.  Edwards.    Farmer  Ediiion, 


Harle.  On  the  13th  of  June,  Mr. 
applied  to  me,  to  lend  him  460/.  npc 
note.  I  accordingly  made  a  draught  • 
goldsmiths,  which  I  suppose  was  pa 
saaae  day,  haf mg  taken  up  the  drau| 
settling  mine  accounts. 

L.  C.  B.  Pengelly.  Mr.  Lscv,  do  you 
that  they  should  go  on  further  in  the 
dence? — Mr.  Loc^.  No,  my  lord. 

L.  C.  B.  Pengelly.  This  indictm 
against  William  Hales,  goldsmith,  ll 
ootaining  upon  this  note  a  draught  equ 
to  money,  and  which  afierwards  pr 
money,  oy  this  false  token.  If  the  no 
forged,  it  was  a  false  note.  He  brouo; 
note  as  a  good  note,  to  induce  Mr.  Harli 
commodate  him  with  450/.  thereupori. 
is  the  description  of  the  act  of  pari! 
that  if  any  one  by  a  false  token  doth  ob 
gel  any  thing  or  any  goods  of  another*! 
poral  punishment  shall  be  inflicted, 
appear  to  be  a  forged  indorsement ;  tbL 
a  ndse  token,  he  must  be  guilty.*  So  t 
evidence  is  the  same  as  to  both  these 
meats. 

The  Officer  sworn  to  keep  the  Jur 

Clerk.  Gentlemen,  answer  to  your  na 

Jury  called  over. 

Clerk.  Are  you  all  agreed  in  your  ver 

Jury.  Agreed. 

Clerk.  \vho  shall  say  for  you  f 

Jury,  Our  Foreman. 

Clerk.  How  say  you,  Is  William 
Guilty  of  the  misdemeanour  whereuiti 
cbaiged,  in  forging  and  publishing  an  ii 
ment  on  a  promissory  note,  or  not  Guill 

Forenum.  Guilty . 

Clerk.    How  say  you,  Is  William 
Guilty  of  the  misdemeanour   wberew 
stands  charged  in  obtaining  money  by 
token,  or  not  Guilty  f-^Foreman,  Guilty 

*  As  to  this,  see  East's  Pleas  of  the  i 
chap.  18,  seel.  G. 


Triato/fl'm.  UaUi  and  T.  KinnenUy. 


iT^.  The  Trial  of  William  Hales  and  Thosias  Kinneuslev, 
Clerk,  for  forging  aod  counterfeiting  a  Note  of  Hand,  bear- 
ing date  August  \6,  1727,*  for  Twelve  Hundred  and  Sixty 
Pounds,  payable  to  Samuel  Edwards,  esq.  or  Order,  signed 
Thomas  Kinnersley,  and  indorsed  Samuel  Edwards  :  SGeouge 
U.  A.  D.    17Sy. 


imy  called  orer  ikg:iip,  and  tworn. 

Cn^.  0YE7^  Oyw.  If  any  one  oan  in- 
km  ny  InH  Uie  kin^'i  rnMice,  ibe  king's  ser- 
^■•^•tknmry.  3cf.  ui  ini>  rause  between  our 
■wuiiyu  \orA  the  king  and  W  illiim  Halei  ami 
IkoM  KionecBley,  let  tbem  come  farlh,  See. 
Vu*  ihc  loaticunent  ww  read. 


lb.Srrdafc  Geutlemeuoflhejuiy.  This 
•U  iaifteliiical  ■^■imt  ibe  two  priHOUera  si 
ftihr,  fTjllum  Hales  uf  Londun,  lale  golil- 
^itk,  aad  Tbotnu  Kiuaerslvy,  clerk.  Tbe 
Woiacsl  acts  furlh  Ibatthese  livo  defendauts, 
hMfftnons  of  ill  Came  atiil  reputation,  and 
^■iif  iDil  iDleoding  10  derrand  Samuel  Ed- 
■w4,(Ki.  aod  divers  other  bis  majesty's  sub- 
^■■,01  Mttreb  last  had  in  ibeir  custody  a  cer- 
MM(B  IT  •  writine'  purporting  to  be  a  pro- 
■■■rj  auto  aigned  by  Tbumus  Kinneraley, 
miitiM  Aog.  16,  iTar.  lo  this  noteTbo- 
^Sjoner^ey  >*  suppnaed  lo  promise  to  pay 
UUJ.  USaniiiel  Edwards,  esq.  wilhb  three 
■atamfter  date,  far  ralue  receiied  ;  that  on 
AaMtewbicli  they  bad  in  their  cusloily,lbey 
A^  so  io<lor«eineul  in  Ihew  words,  "  Pray 
fU  la  lli«  onlcr  ol'  fur  Tal  ue  re- 

omri,  Samuel  Edwards ;"  that  thus  bating 
aMreaMAdy  Ibis  note  with  this  forged  in- 
^UMMiM  iberrufioii,  and  knowing  this  to  bea 
h|tri  isHlimeuieDl,  Ibey  did  afterwards  pn b- 
U  il  to  bn  a  true  one.  These  oRrDcea  are  laid 
I  (Teat  damage  of  the  said  8amueJ 
— t  tbe  breach  of  his  majesiy's 
I  fill  example  of  other  his  majts- 
I  like  case  offendine;.  To  Ibis 
'  have  pleaded  Not  Guilly. 

Gcnrrat.  Hy  lord,  and  gentlenien 
•f  the  jury,  I  am  of  counsel  on  the  same  side 
ki  mj  luTil  lh»  king.  Genilemen,  the  charge 
IpBl  III*  defendant  is  for  forging  an  initone- 
■aMoa  •  ppTmibsory  not*  for  1,S60/.  Like- 
aatlkn  arcchargnl  willi  publishing  the  said 
Malrriat  JBilorwiiient  for  a  true  nne,  know- 
^  iW  MUM  to  be  forged  nud  counlerteii. 
taltMea,  tbu  i*  nut  the  tint  of  sereral  facts 
1 9m  ■■liisr  thai  have  come  to  he  cuniidered 
qk  tagard  to  tbe  defemJHDt  Mr.  Halei :  but 
%lntllHl  hath  corib  lo  be  examined  in  (hi* 
ilrfendoiit,  Mr. 


fm  ibargad  upon  tlx 
liwmUy,  a  dwgytn 


*  &B  Ifee  fnetAng  uul  Mowing  Cbks. 


lancholy  thing  that  when  a  scene  of  fiirgeiy  of 
■Ilia  uature  is  going  on,  which  as  you  bavd 
been  told  is  uf  a  very  [leiDicious  nature  lo  trade 
and  commerce,  we  lihoutd  see  nne  chartrcd 
Iherewilb  that  halh  a  right  to  a[i)iear  in  that 
habil,  and  thinka  til  lo  appear  here  in  it.  Uut 
it  Hill  appear  that  there  is  jiifl  ground  to  charj^a 
not  only  the  defendant  Kales,  but  the  defenibnt 
Kinneraley.     Gentlemen,  as  to  Ibe  fact,  it  will 


I  that  i' 


n  thes: 


tbe  former  fact ;  that  by  Ibai  corresiiondence 
ti>at  Mr.  William  lU\es  thought  tit  (n  let  him- 
self into  with  Mr.  Edwards,  by  applying  fi>r 
frank  covers  lo  send  news  into  tbe  coiintry,  be 
look  occasion  tu  make  use  of  such  a  paper ; 
and  that  there  bein|;  an  intimacy  between  him 
and  Mr.  Kinnersley,  Mr.  Hales  having  by  Ibia 
means  possessed  himself  ofa  frank  cover  with 
tbe  name  of  "  Samuel  Edwards,  flree  "  there- 
on, Ihat  u|Hin  a  piece  of  ibat  paper  cut  otT  from 
tbe  rest,  a  promissiirv  note  is  wrilleu.  I  lake 
it  lhat  the  note  will  appear  to  be  tbe  hand- 
writing of  Mr.  Kiiinersley,  dated  in  a  different 
baud,  Aug.  10,  1737.    The  words  are  these : 

"  1  promise  lo  pay  to  Samuel  Edwards,  esq. 
or  his  order,  three  monlha  after  date,  ihe  autn 
of  twelve  hundred  and  sixty  iioundi,  for  tha 
value  received.  TiiuM.ts  Kikhekslei'."  . 

On  tbe  back  of  Ibe  paper  these  circumstaDCca 
will  appear :  fiisl,  the  edj^e  of  ihcpHper  on  Ihat 
lide  uf  it  where  the  indoraenient  ia  wrote  ap- 
iiears  cut  offi  and  as  in  tbe  furnier  cose,  ao 
here  there  are  tbe  tails  of  two  or  three  letter* 
still  remaining  plainly  to  be  seen.  And  it  will 
appear  that  here  is  an  irregularity  and  uneven- 
oe*E  in  the  culling ;  the  edge  in  one  placa 
smoother  btiiig  lurued  in,  aud  en  book  or  deul 
made  in  lite  paper.  Under  Ibis,  pretty  near 
Ihe  top  of  the  paper,  is  written,  "  Pr^y  pay  lo 
the  order  of,"  then  there  Is  a  wide  blank  as  in 
Ibe  former  instance;  then  follow  tbe  words, 
'■  For  tbe  value  received,  Samuel  Edwards." 
It  appesTb  that  the  words  "  for  the  "  are  writ- 
ten in  a  sironger  and  blacker  ink  than  the 
former;  the/of  ilie  former  sort,  probably  Mr. 
Edwards's.  "The  word  "  Ihe  "  is  not  wrilteu 
in  a  contraction  ua  hetbre,  but  at  length.  Here, 
iustead  of  changing  leltera,  erasing  or  turning, 
are  leliers  wriiien  over  in  a  blacker  Ink  ;  iha 
other  letters,  aa  the  two  re  ajipeit  in  a  palsr 
ink  ;  BO  ilial  it  will  appear  to  a  ftenioDslrutii-n 
ibat  this  was  a  frank  turned  to  this  use.  <Hh*r 
ubeervatioD*  will  likewiie  appear  as  Id  tb« 


i 


227] 


3  GEORGE  II.        Trial  of  Wtn.  Hales,, 


473.  The  Trial  of  William  Hales,*  for 
taining  the  Sum  of  Four  Hundred 
Mr.    AViUiam    Harle,    by    fake    'J 

A.  D.    1729. 


4f.UMTtle!f 


ai  thai   il 


.  3  ipprebeDJ  lii 
:gnind«d  nnd  cai 
tsa.    il  will  >f>li< 


Jury  swoTD  orer  agiio. 

Clerk.  OyEZ,  Otm,  if  any  one  can  in- 
form,  See.  3  "^  S 

GentlenienoftheJory,  William  HalMriaadi 
indicted  by  Die  name  of  Witliara  Hales,  Sec.  fbr 
lalsly  anil  deceitfully  obtaining  (be  autn  of  450^: 
of  Mr.  William  Hsrle  by  a  tiTM  token,  to  wit,  a 

frnmissary  note  in  the  name  of  Mr.  Robert 
Tales,  whereby  the  laid  Rahen  Hales  ia  sup- 
posed to  engage  to  pay  within  three  months 
alter  date,  the  sum  of  800/.  to  Samuel  Edwards, 
esq.  with  a  counterfeU  indonement  on  tbia  note 
in  the  great  damage,  &c.  To  this  indictmeat 
he  hath  pleaded  Not  Guilty. 

Mr.  Strange.  This  likewiae  is  an  indictineot 
agimst  the  defendant  Mr.  William  HalM,  and 
is  tor  faliely  and  ileceitTully  oblaiuing  a 
money  of  Air.  William  Hariebyafal* 
And  It  sets  forth,  that  the  defendant  fai 
nu  nossesiion  a  promissory  note  0I 
Hafes's  for  800/."payable  to  three ., 
dale  to  Samuel  Edwards,^,  with-., 
dorsemenl  thereon  in  the  name  of  tlie 
trnitl  Edwards,  esq.  did  falaly  and 
olHoio  of  one  Mr.  William  Harle,  L... 
A'Ml.  on  tlie  said  note.    This  is  laid  U 
grent  damage,  &e. 

}\t.  UangerfoTd.  Hay  il  please 
>hi|i,  the  fact  charged  is  the  Tery  t 
the  furincr  cause  already  heard  01 
dilTereat  low,  3a  Hen.  8.  There 
to  long  Bgoue  an  abomiuablc  pi__ 
laming  money  by  false  tokens.  The . 
llament  hath  jtivhiUiicd  that  practice.i 

Il  penal.    There  is  hot  one  -■■ 

trouble  your  lordship  with. 

Mr.  Hark  •wnrii. 
Ur.  Ilungirfvrd.    Mr.  Hurli 
account  lo  my  lord,  and  the 
fir^l  saw  that  note,  and  what 


•1  dcr  ol" Mr,  Lilwards.    Fvim 


Hark 
applied 

■"l^"  .  ii^im^tiay  Uiinff, 

«"'*''"  '^eflhe: 

^"?       •    ^lii'baiMl.wi 
•^;l'-      ^*^  brief  be     _    . 


th 


■d-wriUng.    II. 
f  be  rigCt,  iba 


pAalwe  shall  lay  before 

— *^  of  a|)ptyil^;  to  Hr.  E 

anner  of  making  ihia  m 

^^bI,  the  DM  be  made  of  il.  h 

-^d«iMmting  ofitoaa  true  to < 

■  ^iitppeanoD  ihefaceofit  tub 

II  will  appear  plainly  agains 

aeemevl  in  the  forgery,  9 

n  of  it.    A>  lo  the  oiher  0 

_  ~"  nneraley,  the  circ 

'  ^  I  have  meotianed  will  make  it 

'  ^^  and  be  as  strong  eridence  ag 

'--It  the  other. 

gm.  Wliilaktr.    I  will  not  lake 

Hvnrdsliip's  time,  then:  lieing  ini 

fittis;  but  aliall  immediately  cull 

ma. 

Jtmet  Maddax  and  Am 


art  he  inserted  over  again,] 

yir.Jakn  SpicerM\ 
8(^.  WlUtaker.    Look  upon  that  1 
Ml   acquainteil  with    Mr.  Edwart 
n™r__S;>ifer,  Yes,  Sir. 
San.  Whilakir.     How  long  have 
MnwiMed  with  it? 
^^kv.  Twenty-four  years,  Sir. 
Smj.  WMaker.    How  hug  lia*e  t 
Mtwlumr 
Sfktr.  Between  ten  and  I'lnun  y 
%IQ.  Wkitaktr.    How  much  ib  h'i. 
J^icr-  Samuel  Edward*  and  the 


] 


for  a  MisiUmeanw* 


Sfri.  Wkitaker.  Very  well.  As  to  the  other 
kttnt,  whit  are  they  ? 

flakier.  Some  of  them  seem  to  be  written 
tver  ether  letters,  which  I  suppose  were  pert 
ef  Ihe  word  *  free.*  The  r  seems  visiblt  he« 
Ivettlhtond  r. 

Mr.  Strange.  What  was  his  method  of  wiiu 

Efiut.    With  a  donUe  /,  jast  as  it  is  here, 

tk,  Amge.    Did  ^oa  ever  koow  him  use 
itasid  Fraak  f^^^wer.  Never,  Sir. 
A9.  Wnutaker.  You  say  that  }-o«  haro  been 
■MHMd  as  derk  between  10  and  11  years. 
Vnyon  ooneemcd  befofe  for  him  ? 

^BiSBr.  V  OB,  CnT* 

fhq.  Wkitrnker.  lo  what  business  f 

As  to  Ma  pivsae  affairs  in  town,  cash 

I,  and  many  of  his  vents. 

WAUmkgr,    During  the  time  that  you 

aeqwuntcd  with  Iris  prifate  transactions, 

understand  tnat  there  were  any 

in  asoney  affiurs  between  him  and 

.  No,  nsfver  any  whatever.  I  never 
as  heard  Ins  name  in  the  family. 
1^.  WMUmktr.  Did  you  ever  know  that  Mr. 
iMds  used  to  make  a  practice  of  indorsing^ 
■f  Ukar  pcffion's  notes,  or  of  giving'  pronrn- 
•wislsn?    Sfker,  No,  Sir. 

IHJ.  WkiiakeTn  1  believe  you  will  all  be 
omiMBd  that  M  is  his  hand -writing. 

MkMnfej.  1  admit,  Sir,  the  whole  body 
tf  tensle  to  be  mine  own  band-writing. 

■r.  8ir0ng§,    Look  opon  it  before  you  do 
in    We  desire  nothhig  but  what  is  fair. 
Mamersley.    Yes,  Sir,  I  admit  both  the  fi- 
en  the  top,  and  the  whole  note  to  be 


faj.  Whiiaker.  Gentlemen,  yon  will  ob- 
mveAat  there  were  but  3  months  mentioned  in 
AcBSle.  The  note  is  drawn  August  16,  and  was 
m  brsoght  till  March  90  after,  so  that  the 
vWIe  time  was  long  expired  before  the  note 
mi  left  with  Mr.  Bird  for  the  money  which 
What  upon  it. 

Mr.  Strange,  I  verily  believe,  my  lord,  the 
and  note  to  be  both  the  same  hand. 


Mr.  William  Wright  sworn. 

^myWkiiaker,    Sir,  were  you  at  any  time 

Ih  Mr.  Kinnersley  and  Mr.  Edwarch,  and 
an  there  any  diseourse  passed  between  them 
ikMt this  note? 

Wright.  When  Mr.  Kinnersley  was  exa- 
'  before  sir  Richard  Hopkins,  he  there 
it  to  be  his  own  hand- writing,  butli  the 
1*  and  indorsement. 

faj.  Wkiimker,  But  give  us  an  account 
*Wdier  he  was  going  to  make  a  confession, 
m4  whst  was  aaid  upon  it  ? 

Wrigh.  As  soon  as  he  said  that  tbc  note 
ta  sH  his  hsnd-writing— ' 

L  C.  B.  Ptngelly,  And  what  did  he  say  be- 

J^fiifU.    Wbtl  he  said,  my  tord,  as  to  the 
WM  sftarwii^    As  soon  u  he 


A.  D.  173a  [SSf 

I  Kaid  that  the  note  was  all  his  hand-writing,  Mr. 

i  Edwards  asked  him,  Why  he  drew  the  note 

!  payable  to  him,  when  there  never  had  been 

any  dealings  or  negociations  between  them  P 

Serj.  WhUaker.  What  said  Mr.  Kinnersley 
to  that  ? 

Wright,  He  said  that  there  never  had  been 
any  doings  between  them,  either  before  or 
since  the  making  of  the  note  payable  to  inm ; 
that  he  did  not  know  Mr.  Edwaros,  nor,  except 
that  time  before  sir  Richard  Hopkins,  had  not 
seen  him. 

Serj.  Whitaker.  Pray,  Sir,  give  ns  an  ie- 
eount  how  he  was  prevented  ffoing  on. 

Wright,  He  opened  himself  in  this  manner : 
that  he  was  indebted  to  Mr.  Hales  m  that  sum, 
and  more,  and  that  Mr.  Hales  desired  him  to 
give  a  note  of  his  hand ;  that  he  asked  Mr. 
Hales  to  whom  it  should  be  made  payable?  I 
replied.  It  is  very  unusual  to  ask  tliat.  It  is 
sure  natural  for  a  man  to  make  it  payable  to  a 
person  that  he  owpth  the  money  to.  I  said. 
Sir,  you  seemed  before  to  declare  yourself  an 
unhappy  person,  an  undone  man.  1  asked  him 
the  reason ;  and  upon  that  Mr.  Mitford,  who 
was  with  him,  said,  You  shall  not  go  on  to  de» 
dare  any  thing  further,  yon  may  do  younelf 
an  injury. 

Mr.  Strange,  Did  he  say  at  that  time,  that 
he  saw  any  thing  on  the  back  of  that  note  ? 

Wright,  As  soon  as  he  had  declared  the  note 
to  be  his  hand -writing  to  Mr.  Edwards,  and 
Mr.  Bird  had  shewed  the  note  to  Mr.  Kinners- 
ley, he  was  asked.  Whether  he  knew  of  thai 
indorsement  of  Mr.  Edwanls's  hand  before  he 
saw  the  note?  He  said,  he  did  know  of  the  in- 
dorsement thereof,  but  knew  not  how  it  came 
there. 

Mr.  Strange,  How  did  Mr.  Edwanis  ask  the 
questi<m  ? 

Wright,  He  asked  Mr.  Bird,  Did  Mr.  Kin- 
nersley  own  the  indorsement  before  yon  shew* 
ed  him  the  note? 

Mr.  Strange.  Sir,  you  do  not  apprehend  the 
question  asked  you.  What  was  the  qnestioii 
that  Mr.  Edwards  asked  Mr.  Kinnersley  ? 

Wright.  Whether  be  knew  of  the  indorM- 
ment  before  that  Mr.  Bird  showed  him  the 
note? 

Mr.  Strange.  What  did  he  say? 

Wrifiht.  lie  answered  that  he  did. 

L.  C.  B..  Was  that  all  that  he  said  ? 

Wright,  He  said  that  he  had  had  sereral 
dealinj>fs  with  Mr.  Hales,  which  was  the  cause 
of  bis  drawing  that  note  in  that  manner. 

L.  C.  B.  But  what  did  he  say  concerning 
th(!  indorsement? 

Wright.  Mr.  Bird  said,  tbat  before  he  shew- 
eil  Mr.  Kinnersley  the  note,  Mr.  Kinnerslet 
said  that  there  was  such  a  note  of  his  hand, 
with  such  au  indorsement. 

L.  C.  B.  Hut  what  was  the  answer  that  Mr. 
Kinnersley  (jave  Mr.  Edwanis  ? 

Wright.  Tiiat  he  knew  of  the  indorsement, 
but  knew  not  how  it  came  there. 

Mr.  Strange.  Did  he,  Mr.  Kinnersley,  men- 
tion the  indorsement  himself?     Did  be  say, 

4 


935] 


9  GEORGE  II.         Trial  of  Wm.  HaUs  and  T.  Kinnerdey,        [SS( 


whether  he  law  the  name  before  hit  writ'uig 
the  Dute  ?-— Wright.  Not  tt  that  time,  Sir. 

Mr.  Siranse.  Did  he  at  any  other  in  your 
heariiisr? — li'righi.  No,  Sir. 

!ilr Estrange,  When  Mr.  Mitford  ttopt  him, 
^as  there  uuy  discourse  afterwards  whoaa 
hand-writing  the  note  naight  be;  was  there 
any  dispute? 

Wright,  Sir,  the  company  broke  up  then, 
when  Mr.  Mitford  had  given  him  that  caution. 

Sir  Richard  Hopkins  sworn. 


Serj.  Whitaker,  l^r  Richard 

Mr.  Xocy.  1  would  beg  first  to  ask  sir  Ri- 
chard, whether  this  examination  %vas  reduced 
into  ivriting  ? 

Sir  R.  Ilo/ikint.  I  always  take  a  memoran- 
dum in  my  book  of  what  is  said  upon  an  exa- 
mination. Tliere  was  none  other  examination 
in  writing,  but  my  memorandum  of  what  1 
thought  sufficient  U>  occasion  the  commitment 
thut  I  made. 

t^rj,  Whitaker,   When  was  it? 

Sir  R,  Hopkins,  it  was  some  time  about 
September.  I  remeAaber  that  he  was  chargeil 
before  me  about  two  notes.  One  was  a  note  of 
1,260/.,  the  other  was  a  note  of  1,650/. ;  which 
of  thc^e  you  desire  me  to  sneak  to,  J  know  not. 

Serj.  Whitaker.  That  of  1,260/. 

Sir  R.  Hopkins,  There  was  such  a  note 
drawn  by  Thomas  Kiunersley,  |>ayable  within 
three  months  afier  date  to  Samuel  Edwards, 
esq.  and  indorsed  by  Samuel  Edwards.  1 
looked  ui>on  it ;  and,  turning  over  the  indorse- 
ment, it  seemed  to  me  to  be  an  altered  and 
forti^cd  thing.  Upon  this  I  examined  Mr. 
Bird,  whom  they  offered  as  an  evidence. 
Mr.  IVird  lold  me,  that  he  bad  lent  money  upon 
that  note  of  1,260/.  and  that  he  had  received 
some  money  in  part  of  payment  of  what  he 
bad  lent:  'fhat  Learing  that  Mr.  Hales  was 
taken  up,  he  made  application  to  Mr.  Kiu- 
nersley tor  what  money  remained  due  to  him ; 
that  when  he  made  such  application  to  Mr. 
Kiunersley  for  this  money,  Mr.  Kmnersiey,  be- 
fore he  saw  the  note,  told  him,  that  he  had  a  note 
of  his  for  his  1,260/.  payable  in  three  months 
after  dute  to  Samuel  Edwards,  esq.  or  order, 
and  indorsed  by  item uel  Edwards.  This  1  laid 
my  finy;er  upon  before  him,  thinking  it  sufficient 
to  conunit  him,  and  repeated  the  words  to  Mr. 
liird,  are  these  the  words  that  you  say  ?  if  they 
are,  re|)eatthem  ;  which  he  did.  I  askefl  31r. 
Kinnei-sley,  whether  he  hfid  any  dealings  with 
Mr.  Edwards?  He  said,  that  be  had  not.  1 
askeii  then,  how  be  caiue  to  make  a  note  for 
1,260/.  payable  to  him,  a  person  with  whom 
he  liad  no  dealings.  He  said,  that  he  did  it  at 
the  icquebt  of  Mr.  Hales,  to  whom  he  was  in- 
debted iu  that  sum  of  money«  He  said,  that 
as  to  the  indorsement  he  knew  not  how  it  came 
IhtTP.  He  seemed  ready  to  make  an  ample 
conieshiun ;  but  there  was  a  person  thera,  who 
was  (1  think)  one  way  or  otiier  related  to  tiie 
law,  who  stopt  him  directly,  and  had  oft  inter- 
rupted. I  said  to  him^  air,  tbb  is  not  be- 
•omiDgherc:  I  expect  to  caniae  any  penoo 


without  your  interrupting.  I  will  afterwards 
ask  any  question  that -«— 

Seij.  Whitaker,  Sir,  when  Mr.  KinDeiilcy 
bad  owned  the  note,  was  there  afterwards  a 
denial? 

Sir  R.  Hopkins.  Aflerwardst  Sir,  there  was 
a  denial.  It  might  be  as  to  tlie  other  note; 
and  not  that  which  you  are  now  eilung  IM 
about. 

BIr.  Richard  Davis,  the  constable,  sworn. 

Serj.  Whitaker.  Richard  Davis,  I  think  tbei 
you  were  the  constable  sent  to  apprehend  Mr. 
Kinnersley.  Will  you  give  us  an  eoooanl 
how  often  yon  went  to  apprehend  bim,wbelhci 
he  was  to  be  met  withal,  and  what  passed  when 
he  was  apprehended  ? 

Davis.  My  lord,  on  September  18,  tbm 
was  a  warrant  issued  out  to  take  up  the  ktI 
Mr.  Kinnersley,  and  was  given  to  ine  to  eie* 
cute.  Accordingly  1  went  in  the  aftemeeai 
and  took  a  |iorter  with  me.  We  went  to  thi 
Magpye  tavern  without  Aldgate.     I  sent  the 

Sorter  thence  to  Mr.  Kinnersley *8  house  is 
lansel-etreet  to  tell  him,  that  there  was  a  gen- 
tleman there  to  speak  with  him ;  becaoee,  hi 
living  in  Mansel-street  in  Middlesex,  1  conU 
not  there  execute  my  warrant.  When  lh« 
porter  came  back,  he  told  me,  that  the  dmughlei 
came  to  the  door,  and  said,  that  the  reverand 
Mr.  Kinnersley  was  not  in  town.  After  I  Iml 
paid  for  what  I  had  called  for,  I  wentfraa 
thence  to  the  derk  of  the  parish,  and  esksd 
him,  whether  the  reyerenu  Mr.  Kinnersln 
was  in  town?  He  answered.  No;  and  sain, 
that  he  went  out  of  town  on  Tuesday,  I  thill 
it  was,  and  tliat  he  did  not  know  when  h« 
would  be  in  town.  He  asked  me  what  I 
wanted  with  him  ?  I  told  him  that  a  conpk 
wanted  to  be  married,  and  wanted  a  licence 
Won't  (said  ht)  the  curate  do?  No  (said  I) 
the  young  gentlewoman  will  not  be  marriei 
by  any  but  the  doctor,  and  at  his  church :  S 
the  person  having  no  apprehension,  sent  me  t( 
London-house  in  Aldersgale-strcct,  to  enquir 
for  Mr.  May,  who  would  tell  me  when  thi 
doctor  would  be  iu  town.  He  told  me,  that  b* 
would  be  in  town  next  Thursday  night.  Ac 
cordingly  I  went  the  next  Friday  morning 
took  a  porter  with  me,  went  ilirectly  to  t£ 
Doctor's  house.  When  I  came  there  I  ninj 
hard  at  the  gate.  Out  came  the  daughter, 
asked  to  speak  with  the  doctor ;  she  said  tbi 
he  was  not  at  home,  and  enquired  what  I  wouli 
have  with  him.  I  told  her  the  same  about  m; 
wanting  a  licence  that  I  had  tuld  the  clerk  be* 
fore.  I  will  (said  she)  go  and  call  my  mammi 
Accordingly  madam  Kinnersley  came  out:  . 
told  lier  that  I  wanted  a  licence,  was  in 
formed  that  the  doctor  generally  kept  licence 
by  him,  or  at  least  could  help  me  to  one.  SIm 
desired  me  to  walk  into  the  parlour,  said  the 
the  doctor  had  been  out  of  town,  was  very  muci 
fiitiff  ued,  which  was  the  reason  that  he  was  dc 
nied.  Out  came  the  doctor;  Sir,  (said  he 
where  is  the  gentlewoman  ?  Sir,  (said  1^  she  s 
hard  bji  at  the  Magpye  tavern  by  AJdgati 


f<yr  a  Misdememor. 

il  bt)  is  ibe,  *Xii  nho  art  ber  frieoils 
B  Ifaat  ber  name  waa  Binl.     When 

B  abe  r  I  Mid  ID  Fleet -stifei. 
<i  be)  remeuiber  thai  name.  ¥011  do 
.  .  BUllknowlwrrallierTery  ndl.  What 
■II  (aU  or)  ia  she  ?  I  told  bim  her  age. 
B«n  bs  I'riends  aiten  conaeut  (laiil  be), 
'■'afcWIbM  l.nouldiKil  Jo  it  For  lOO/.;  tbe 
yniqr  ia  50/.  \  I  Inid  liini  lliat  il  bail  been 
taila  MT  know  ledge.  Ave  (said  be)  ilroaj 
k  M  Ac  Vtm.  J  dHired  bim  to  go  to  the 
k<M^  where  her  brother  waa  wilh  her,  Rod 
k*«M  b*  Mtisfied.  My  intent  wna  to  decay 
b  ■!»  tbe  libcTtiea  ol'ihe  city.  Hetaid,  Nci, 
k<M«Unotgn  vrilb  me;  so  I  bad  no  oppor- 
tari^tben.  Itut  baling  seen  him  once,  and 
MinaatDS  liiin,  I  afUrwarOa  watched  for  him, 
mi  *a*  bim  come  nut,  and  go  through  the 
Ibmn.  I  watched  bim  till  became  to  Ald- 
|Nt;  I  kben  paid  my  respectt  to  liim.  I  lliiak 
{mA  bt)  that  you  are  the  peraun  thai  came  to 
■tabaat  ■  marriage.  Yea,  Sir,  (aaid  I)  but  1 
'■"  ■  ^  alfaii  to  apeak 

He 
,  bad  the 

piisni  aonl  to  him,  be  would  readily  have 
«■&.  I  aakcii  bim  why  he  ilFniett  bimseir? 
■»Mll,  Ibal  be  apprehended  an  arrcBl.  I  de- 
M  bfai  U  go  with  roe  to  the  While  Hnn 
iMsia  Biahai>9gale' street.     Xlelbere  owned 

fc].  WkUakcr.    Was  it  within  or  wilbout 
^\m%t—Dam.  It  waswithin. 
.%n.  WKttukrr.  Did  you  go  wilh  him  to  sir 
fete4  Huphina?— Duvit.  Yea,  iSir. 

|.  Wkttaktr.  My  lord,  there  is  another 
""tu  we  aball  prute,  tor  all  is  drciiro- 
We  ahall  shew  that  Mr,  Kinner»ley 
_ '.  HalM  have  been  often  together  for 
r  It«  raoDtlis  in  a  priisle  manner.  As 
B  bath  come  in,  the  other  hath 

Cwilh  kina  into  a  private  room,  and  they 
Blajnl  •ooie  lime  together ;  and  this  was 
itM  Hi*  iitiM  that  lime  Iraiisadion*  have 
nbm  these  matters  are  laid  together, 
jai^MjailftcthalMr.  Kinnenley  bath  not  been 
,  mMm  Mr.Edwar^aaalogivehirol.ifGO^; 
lAu  tberv  waa  a  nlain  limned  design  to 
■  IbiaHiBtwy  npon  biseredit.  Join  (bis  to- 
'w  with  bis  owning,  that  be  knew  that  Mr. 
^  ■  '  ■  ml  waa  on  ilie  back  o(  the  note 
V  the  note,  anil  that  he  knew  of 
rot.  lliongh  he  said  be  knew  not 
Mlbere-  CoDsiilering  these  things, 
(  bul  that  there  was  a  con- 
MbAtneutbein.    We  (hall  call  aereral 

We  submit  it  to  my  lord,  whe- 
— -f.  Il  ia  foreign  to  this  indicl- 
aboulil  have  notliing  nlTered 
■at  we  may  tw  sii|ipoaeil  to  come  pre- 
■  ilWand.  We  caDDot  be  aupuuseil  to 
^  pNfwrH  in  iMcnd  ihii,  by  shewing  how 
beaaM  tbete,  and  upon  what  ncconnt. 
_  I-  C  fi:  Il  ia  an  indictment  againat  both 
!%•  Bal«  WM  indeed  »&> 


scribed  by  the  defendant  Kinnersley:  Bat 
then  itwasdebiertnl  ontby  Ihentber  Jerendant 
llalea.  Now,  they  say,  that  they  will  shew 
by  several  witnesses  tbai  they  were  Tery  oon- 
lersant  logether  about  that  time,  and  they  are 
■cquainteil  with  tbe  private  manner  of  Oieir 
conreraing  logether.  You  hear  what  is  the 
use  they  make  of  it.  I  see  nut  that  we  can  re- 
fuse their  giving  this  account.  What  uae  is  Ia 
be  madeol  it  muat  beletllu  the  jury. 

V[t.  Mather.  Aretbeae  things  lobe  proredby 


Hr.  Strange.  Pray,  where  do  you  live? 

hah.  At  Feel's  colfee-houie,  in  Fleel-slreet. 

Mr.  Slrangr.  Do  yoti  keep  that  bouse? 

Bab.  Yn,  !^ir. 

Mr.  Strange.  Hare  you  ever  obaened  ihat 
Mr.  Hales  anil  Mr.  Kinnerstey  erer  frequented 
that  house,  and  in  what  manner  ? 

Bab.  Last  summer,  tbe  greatest  partofthe 
sutnmer,someiimes  twice  or  thrice  in  a  week, till 
near  the  lime  that  ibe  gentleman  was  taken  up, 
Mr.  Hales  would  somcliinea  come  thither,  and 
anmetimes  be  there  an  hour  or  two.  Some- 
times be  wnuiil  ask  whether  a  minister  bad 
been  there  to  aak  for  himT  We  hardly  knew 
the  name  of  either  of  them,  but  knew  whnm  ha 
meant.  Mr.  Haleswould  often  bein  ourroom, 
and  see  sonielimes  Mr,  Kinneraiey  coming,  out 
of  the  window.     Mr.  Hales  would  hardly  take 


«ofhirr 


but  a 


she  c 

.te  room,  and 


Hales  would  go  ii 
the  other  atterwards  go  t 
timea  as  soon  as  one  came  in  at  one  door,  the 
other  went  out  at  Ihc  other,  and  be  followed  bim. 

Serj.  Wliilaker.  How  often  was  ibis  ? 

Bab.  Twice  or  thrice  in  a  week. 

Mr.  Strangt.  Do  you  remember  on  what 
occasion,  and  bow  tbey  lefl  off  coming  to  your 

Bab,  Mr.  Kinnersley  was  not  at  the  honse 
for  two  or  three  weeks  or  a  month  before  Mr. 
Hales  was  taken  up.  Mr.  Hales  was  there  a 
tew  days  before. 

Mr.  Strange.  Do  you  remember  that  Mr, 
Kinnersley  passed  by? 

Bab.  Once  he  did.  He  weol  down  Fleet, 
street-  Mr.  Halearoscup,  went  out,  ood  went 
alW  him. 

Mr.  Strangt.  How  long  tvas  tbis  before  Mr. 
Hales  was  apprebendeil  ? 

Bab.  It  was  three  weeks  or  a  month,  I  he- 
litre,  before  he  was  ajiprcbendeJ. 

Mr.  Slninge.  I  ask,  Whether  at  any  lint 
they  aatdowii  in  Ibe  public  room  ? 

Bab.  Very  seldom :  Ihey  generally  went 
into  the  pritale  part. 

Mr.  Strangt.  Was  that  distinct  from  lb« 
rcstofibe  buiiseF 

Bab.  Yes,  Sir,  i^uile  separate. 
Mr.  Juhii  BrBokttt 

Mr.  Slrtige-  Where  d*  yon 


S391 


3  GEORGE  11.         Trial  of  Wm.  Hales  and  T.  Kinnerdey,        ££4 


Brooks, '  I  keep  a  coffee- hou<e  in  Downing- 
(ttrerty  in  WesUniotter. 

Nr.  Strange,  What  name  doth  yoor  coffee- 
house go  hyf — Brookt.  My  own  name. 

Mr.  Strange,  Do  vou  l^now  tbat  you  have 
ever  observed  that  5lr.  Hales  and  Mr.  Kin- 
oenfley  ever  frequented  your  house,  and  in 
what  manner  ? 

Brooks.  Mr.  Kinnersley  hath  sometimes 
come  to  the  cofice-  house ;  sent  for  a  porter ; 
gave  him  a  note  to  Mr.  Hales,  who  hath  come, 
and  they  have  gone  to  a  private  ^tart  of  the 
room. 

Mr.  Strange.  Was  there  aoy  other  with 
them? — Brooks.  No,  Sir,  never. 

Mr.  Strange.  Was  it  often  that  they  met 
thus?  ^ 

Brooks.  About  four  or  five  times  iu  a  month. 

Mr.  Strange.  How  long  have  thcv  stayed  ? 

£r(k>/».  Several  hours.  When  I  have  asked 
the  servant  whv  a  candle  was  not  carried  them, 
ke  hath  said,  that  they  refused  it. 

Mr.  Strange.  How  long  was  it  before  Mr. 
Hales  was  taken  up  ? 

Brooks.  About  a  month. 

Mr.  Strange.  Was  tliere  any  observation 
yiade  upon  his  being  taken  up  ? 

Brooki.  I  observed  it  the  more,  having  oflen 
«een  them  togctlier. 

Thomas  Janeway  sworn. 

Kiuncrsky.  I  admit,  my  lord,  that  we  have 
been  together  at  several  coffee- bouses. 

L.  C.  B,  Well,  now  the  mau  is  sworn,  we 
will  go  on  with  him, 

Mr.  Strange.  Do  you  know  Mr.  Kionersiey 
and  Air.  UB\ei?-^Jnntuuy.  Yes,  Sir. 

Mr.  Strange.  Do  you  keep  a  coffee-house? 

Janeway.  Yea,  Sir. 

Mr. Strange.  Where? 

Janeway.  In  Cornhill,  Sir. 

Mr,  Strange.  Do  you  remember  tbat  they 
have  frequented  your  house  together,  and  in 
what  manner  ? 

Janeway.  I  believe  they  may  have  been 
there  t^^ther  several  times. 

Mr.  Strange.  What  company  had  they  with 
them  ? 

Janeway.  1  take  no  notice  what  company 
is  there.    I  observed  them  not 

Mr.  Strange,  How  ot^en  have  you  observed 
tiiem  retire  up  stairs  together  ? 

Janeway.  I  take  no  notice  of  sucli  things. 
They  might  for  an  hundred  times,  for  aught  1 
know. 

Serj.  Wkitaker.  My  lord,  we  shall  rest  the 
evidence  here.  We  submit  it  to  your  lordship 
and  the  jury,  when  such  a  note  is  drawn  by 
•uoh  a  mau  upon  such  a  paper,  by  which  he 
promiseth  to  pay  such  a  sum  to  a  person  with 
whom  he  had  uo  dealings,  to  what  end  can  it 
ke.  Can  it  be  with  any  other  intention  than  U» 
charge  an  inuocent  mau  witli  it  ?  J  think  it  is 
a  plain  case.  It  k  certain  that  Mr.  Hales  car- 
ried this  note,  and  borrowed  a  sum  of  money 
upon  it.;  and  Mr.  Kinnersley  made  preparation 
tor  it  by  making  a  note  for  so  much  monty 


psjfable  to  Mr.  Edwards.  Doth  a  nan  q 
easily  ifive  1,960/.  to  a  stranger  with  whom  U 
bath  had  no  dealings  ?  To  what  pnrpote  eonk 
it  then  be  thus  drawn?  Wb^,  to  he  indorsed 
And  this  Mr.  Kinnersley  did,  and  he  ownei 
that  the  name  was  there,  and  be  knew  that  Mi 
Edwards  was  a  rich  man.  Well,  if  Mr.  £4 
wards  was  a  rich  man,  and^the  other  not  won] 
a  groat,  as  he  owncl  himself  to  be  an  nndon 
man,  to  what  purpose  then  can  it  be?  WeU,  1 
think  it  clearly  appears  tbat  this  wan  a  eon< 
trivance  between  them  two.  If  you  think  mi 
this  plain,  I  think  that  it  is  imnoiisiUe  to  torn 
vict  any  man  on  a  stronger  evidence. 

Ser).  Darnell.  Mv  lord,  I  amcounfel  ierthi 
prisoner  at  the  bar,  Mr.  Hales.  Aiu|  I  thiak  j 
doth  appear  that  there  was  a  transaction  ha 
twecn  Mr.  Hales  and  Mr.  Kionersley  ;  av 
that  this  money  was  due  from  Mr.  KiaMibei 
to  him.  And  we  aitprehend,  nntwithftandini 
what  hath  been  oflered,  that  the  confsMinp  s 
Mr.  Kionersley  is  a  proper  justification  of  lb 
Hales.  It  is  not,  my  lord,  Mr.  Kinnerslev' 
being  a  defendant  that  shall  deprive  Jlr.  Uu| 
of  the  benefit  of  this  oonfesston.  It  ap|^earai| 
that  he  was  indebted  to  Mr.  Hales,  this  nsl 
was  given  in  satisfaction :  we  apprehend  Ibi 
it  was  given  upon  this  acconnt  to  R|r.  Utlfl 
In  confirmation  of  what  Mr.  Halea  nilh,  m 
can  produce  a  person  to  shew  tbat  therf  nt 
an  account  between  them,  and  Mr.  KinnMhl 
acknowledged  such  a  balance,  in  salis&clii 
of  which  this  note  was  giveo.  And  we  thpi 
that  it  could  not  be  drawn  as  a  note  of  U§ 
Kinnersley 's  payable  to  Mr.  Hales,  not  «■!] 
because  the  account  would  be  as  good  agM 
Mr.  Kinner&Iej^  as  such  a  note  of  bis  hand,  k 
also  because  of  5fr.  Hales*sown  circumstance 
Mr.  Hales  applied  to  a  gentleman  that  reooqi 
mended  him  to  Mr.  Bird  to  borrow  money  qpo 
this  note.  And,  gentlemen,  it  was  thia  nel 
thus  drawn  that  recommended  him.  M; 
Hales  had  the  misfortune  to  be  oonceraed  wit 
sir  Stephen  Evance;  he  coukl  not  therefai 
appear  himself;  and,  therefore,  by  the  assial 
ance  of  this  note,  borrowed  tlie  money.  Whi 
difficulties  came  upon  it,  he  went  and  paid  pai 
of  the  money,  and  I  believe  would  have  talu 
care  to  have  paid  the  whole :  it  doth  notappei 
that  this  hath  affected  Mr.  Edwards.  H 
name  indeed  hath  been  exposed  as  a  roan  won! 
not  l)e  williuff  thatit  should  ;  monev  bath  bei 
raised  upon  the  credit  of  his  name ;  out  he  hnl 
not  becu  affected  thereby.  This  therefore  lid 
on  the  unhappy  circumstances  of  Mr.  Hak 
We  will  call  one  witness,  and  ihen  this  coufti 
sinn  of  Mr.  Kinnersley  we  ho|>e  will  avail. 

Mr.  Lacy.  My  lurd,  I  apprehend  that  there 
a  circumstance  ihat  lessens  the  weight  of,  if 
not  wholly  sets  aside  whst  they  go  upon.  Whi 
they  have  gone  on  was,  that  Mr.  Edwards 
franks  were  used  lo  this  ill  purpose.  Aladdae 
a  servant  of  Mr.  Edwards,  is  produced,  wl 
tells  us  of  a  parcel  of  franks  that  were  delif  en 
iu  July  iMt.  Mr.  Bird  gave  an  account  tk 
this  note  was  liroughk  to  him  in  March :  i 
that  ii  was  brought  him  before  thoae  fnnl 


I  Mhdemranor. 

Aiul  thnugh  il  may  be  ap< 
there  were  oiher  rmiikti,  we 
Oittk  tint  (bera  ouyhl  lo  be  a  ptout'  of  some 

ji.U  il.ii  iffrti  dt'lKcred  before. 

TIterc  hnfe  been,  Mr.  Lacy, 
■j'l^weti)  for^teral  years.  Thoie 
<  4:Iil  ill  July  laM,  arolliose  ihkl 
iiniikn),  but  were  only  covei-s  iell 

Mf-  R^btrt  Burkil  ivimn. 


<://.     No  !   What  dolh  (lie  mao 

'       What,  none  in  Newgate,  nor 
Uo  you  know  of  oooc  ? 
■   .,Sir. 
'              -■,■.    Do  j'ou  know  of  any  money 
ftji  'u  nl  auy  time  itue  froiD  Mr.  Bale*  to 
Nr.  fciMMnic)'  r 
Btrkit.  No,  Sir,  none  at  all. 
LC.  B.  Ila>e  voii  anyolber  trilnesi? 
Sqj.  Darnell.   My  lorJe,  there  are  Iwo  wit- 
• ■ --.slaleJ, 


^  Ejrt.  My  lord,  aud  ^ntlemen  of  tlie 
,  A I  am  connacllbr  Iklr.  Kinnersley.  I  sp- 
|MmJ  iliM  lie  is  ionncent.      t  readily  agree 


liy  ad  of  parlwtli 
MMHt,  uid  (heir  ceourity  necessary  lo  com- 
M«t;  toil  that  Uie  forgery  of  audi  notes 
III  ■liinrmeiiu  tliereupon  i«  very  peroicioua 
ktt*  f¥Uic :   I  ihertfure  apprebend  that  (here 

«Vt  W  alrong  e*iileiu;e  for  tlie  contlcling 
ih  a  crime.  1  bu[nb|y  Bubiiiil  it,  that  be- 
In  *  Bss  be  convicted  or  ao  iutamous  au  af-' 
fel  Ifcer*  oo^t  to  be  atran^  eiidence ;  and 
it  iMber  )M^r«iuie  be  it  a  clergyman  of  the 
flHcli  of  Eaj^aiiil,  and  his  cnpacrty  nl'  «er- 
(indepriLda  M)ion  liia  credit:  And  il  doth  ap- 
fwlkat  be  baihbeliarcd  himself  wiib  all  pos- 
db  eaalMD.  You  see  that  ibe  coutrivance 
tm  IW  iiilirvr  aem  la  apprehend  bira  made 
111,  iiu  a  preience  of  a  marriage.  You 
Mn,  and  I  did  glad  lu  tee  il,  and 
■0  otlieis  Used  tbe  i>ame  caution, 
hiaanijuiry  wliul  t^fe  the  young  wo- 
lof,  MiilentaadinE  Ihni  Hhe  waa  not  of 
bcr  parenti  not  being  tlii^re,  nolwiili- 
dial  be  irit  told  lliiit  lier  liiuihcr 
riUi  bor,  jet  he  ab9i>luti.-ly  refused, 
111  nut  be  coocerncil  fur  an 
foaajm  niibuui  the  parent'a  conBenI: 
Mich  a  p"ii>t  ill  hiw  favour,  lliat  1  Ibiiik 
•lion^rr  cirr^iinaiance  fiir  him,  than 
circuniiUiiceB  arc  ugaintrt  blm.  A* 
affencK  iliai  ii  charged  upon  bin.  ilia,  I 
:,  (bat  he  »li«uid  gifa  mit  a  note  made 
IMjalili- (0  Mr.  Kdwards,  and  in 
DtiU!  in  Mr.  Edwards'a  name,  ii 
ij^  Mr.  Edwardi  with  the  pay 
iiinpy.  Tlii'v  lav  a  great  itreai 
1  ••y,  that  Sir.  fciuiiersley  wui 
Liiiti«l  iriib  Hr.  liiwuit.    Ow 


A.D.  1729. 

of  die  wimenes  aaiili,  that  Mr.  KinnetUt^ 
hitntelf  oivned  that  he  had  neicr  seen  Mr. 
Edwarda  before  in  hi*  life.  How  therelbr^  (say 
tbey)  is  it  likely,  that  there  should  be  any 
tiur  reasDa  for  a  man  tn  make  such  a  note  pay  - 
alile  lo  one  that  he  had  no  deahng  nor  acquaint* 
ance  with,  nm- had  so  much  as  ever  seen  before 
in  his  lite  T  I  eubinit  it  to  you,  whether  in  ibe 
course  of  business  it  is  a  material  thing  whom  a 
note  is  made  pajablelo.  If  a  man  owe  a  sum 
of  money,  and  give  a  note  for  it,  il  is  natural  to 
enquire  to  whuiu  it  should  be  made  payable, 
It  was  the  more  naiural  iu  this  case,  ai  Mr. 
Uales,  having  the  miaforlune  to  have  a  com- 
missiun  of  bankniplcy  standing  out  against 
him,  could  not  negociste  note*  in  his  own  name, 
but  must  act  in  some  friend  or  neighbour'! 
name.  And  il  is  no  great  wonder  that  Mr. 
Kinnersley,  whose  characterdirccted  bis  studies 
another  way,  and  who  waa  not  Bcqiiainled 
much  with  these  aftkirs,  should  he  imposed 
ti[H)n  to  give  such  a  note;  and  the  less  so,  fnr 
this  plain  rEOSOD :  Sir  Stephen  Evance  and  ih. 
Hales  formerly  Ufcd  iu  Mr.  Kinnersley'a 
parish  ;  received  him  with  a  great  (leal  of  oiti- 
\\ty  :  It  can  be  no  wonder  therefore  that  h* 
alierwards  continued  an  acquaintance  with  him. 
Notwithstanding  his  roisforlunea,  it  ia  plain  that 
Mr.  Hales  was  Hiillacquaioleil  with  several  very 
worthy  gentlemen  :  Mr.  Gibson  and  Mr.  Ed- 
wards butb  furnished  him  with  franks;  sir 
Uiby  Lake  recommended  hira  to  Mr.  Bird,  in 
barrow  of  him  s  considerable  sum  of  money. 
If  such  gentlemen  as  Ihese  thus  corresponiled 
with  him  after  his  mitlbrlunes,  no  wuntler  thai 
Mr.  Kiuuersley,  whs  had  been  the  minister  of 
the  parish  where  Mr.  Hales  had  lived,  should 
beep  lip  ao  acquaintance  with  him ;  and  so  no 
wonder  that  he  ahoulJ  be  so  imposed  on.  In 
fhci,  Ke  shall  shew  you  that  he  was  indebleil 
for  such  aaum  to  Mr.  Hales.  It  is  impossible 
(Ogive  a  particular  account  of  the  whole  affair ; 
Mr.  Hales  being  also  a  defendant,  and  there- 
fore no  evidence :  But  that  he  was  indebted  iii 
some  such  sums  is  plain.  Gentlemen,  it  is 
very  ioaocent  if  a  man  give  a  note  where  ibero 
is  no  consideration.  '  A  is  no  injury  to  tbo 
public.  The  person  that  gives  the  note  may 
mjure  himself,  but  not  the  public.  There  ia  ai> 
act  of  parliacnent  against  tlie  giving  of  auch 
notes.  Well,  if  the  giving  of  tbe  note  be  nut 
culpable,  consider  bow  the  fact  uf  the  indorse- 
ment comes  about.  And  if  you  consider  how 
that  comes  about,  do  doubt  but  that  he  must  ha 
i:leared  uf  the  fact.  How  must  this  be  done  to 
affect  Mr.  Kinnersley  7  It  mu-st  be  on  the  back 
of  the  pole  when  ho  wrote  tbe  note,  and  h« 
muM  know  it  to  be  there.  Now,  with  great 
submissiou,  have  they  given  any  proof,  or  co- 
tour  of  proof,  that  it  was  then  there,  or,  thai 
if  it  was,  be  knew  it  lu  be  tlienf  Hiey  haw 
given  you  (he  prouf  uf  Mr.  Ciid  and  the  con- 
stable, who  was  present  when  lie  was  examin- 
ed. According  to  the  Brst  of  these,  it  is  pUin 
that  he  knew  not.  He  said  that  he  knew  (bat 
the  name  was  there,  but  know  not  how  it  cania 
Tbbc,  I  thiuk,  instaad  ol  a  coafotiaa. 


fiS] 


3  GEORGE  II.         Trial  of  Wm,  Hdn  and  T.  Kinnenley^ 


is  an  BTeiAo^  of  it,  by  nyini^y  HMt  be  knew 
nothinfir  ai  «||  how  it  came  there :  But  consi- 
der tlie  nature  of  ^e  thinip,  how  it  is  eupposed 
to  Ik  done  from  a  frsnii  of  Mr.  Edwanls's. 
Mr.  Edwards  liad  never  franked  a  letter  for 
bim,  but  many  tor  3lr.  Hales.  Is  it  not  most 
natural  lo  suppose  then  that  Hales  was  con- 
cernod  ?  Hnw  doih  it  follow,  that  this  being 
done  from  a  frank,  the  nam<!  must  lie  tbera  be- 
fore Aie  note  was  wrote  P  A  man  that  is  capa- 
ble of  drawing  such  a  note  for  ooeh  an  end, 
might  be  not  gire  it  to  be  Ihmked  ?  Is  it  not 
easy  to  conceive,  that  if  I  give  onch  a  note  on 
a  quarter  of  a  sheet  of  pa|>er  doubled  up  to  a 
person  to  be  franked,  that  he  shall  do  this  so 
as  to  make  the  name  stand  for  an  indorsement  ? 
1  woaM  mslce  this  further  observation,  it  hath 
been  eounted  doubtful,  whether  the  making 
nse  of  a  man's  name  to  a  diflferent  purpose 
from  what  he  dcsigiied  itfor,  shall  be  counted 
a  forgery.  I  think  that  the  doubt  arisetfa  npon 
a  distinction  of  my  lord  Cowper,  on  the  statote 
of  8  lilix.  between  forgmg  aud  making  a  false 
deed,  i  do  not  |ire(end  to  say  but  that  the 
opinion  of  the  King's -bench  was  right.  It 
was  in  the  aflair  of  Ward  and  Bridge. 

X.  C  B,  No,  Bridge  and  Dutton :  there 
was  an  alteration.  The  question  was,  whether 
H  could  be  accounted  a  forgin-y  within  the  act 
of  fiarliament  ?  The  wunls  of  the  description 
in  the  act  of  parliament  are,  ^*  if  any  one  forge 
or  erase,  IkcV  whether  he  could  be  charg^ 
with  forging  of  that  note  ?  I  was  one  of  the 
counsel.  It  appeared  their  opinion,  that  he 
forged  it  as  much  as  if  he  bud  wrote  the 
whole  note. 

Seij.  Eyre»  M}*  lord,  \  a<]free  it  to  be  as 
your  hardship  puts  it.  I  nnly  mention  it  bs  a 
iktubt  not  settled  hy  the  priti(e<l  bookii.  My 
lord,  a  man  may  alter  a  deed,  e.  g.  a  person 
o Weill  me  money  on  bond ;  if  1  alter  tlie  boud 
to  mine  own  damsge,  that  is  no  forgery ;  but 
when  he  doth  it  to  the  injury  of  the  person  to 
wliom  ttio money  Is  owing,  then  it  is  forgery  : 
the  furgery  therciore  lieth  in  the  design  of 
defrauding  another.  Now,  whose  good  is  it 
that  this  note  was  drnwu  for  ?  It  appears  that 
my  client  had  no  benefit  st  all  by  it.  The 
money  was  all  received  by  Mr.  Hale^,  and  the 
whole  transaction  about  paying  the  money  was 
by  Mr.  Hales :  he  was  therefore  to  receive  the 
%ene(it,  most  likely  therefore  tlitit  the  forgery 
was  his.  And  as  to  this  promissory  note,  what 
SVBS  the  effect  of  it  ?  No  one  will  pretend  to 
say,  but  that  if  Mr.  Edwanls  was  to  bring  an 
action  lie  might  n  cover  his  money  of  Mr. 
Kiunersley:  he  hath,  therefore,  osily  wrote 
A  note,  which,  with  nut  controversy,  hath  sub- 
jected him  to  the  payment  of  such  a  sum.  of 
money.  Mr.  Hsles  hath  receivcil  the  money, 
and  gained  by  this  ntite.  IVe  submit  it  there- 
fore to  your  lordship. 

Hr.* Mather,  My  lord,  with  rHstinn  to  the 
transactions  between  Mr.  Kinnemley  and  Mr. 
Hales,  we  shall  call  evldi.'nce  to  sfiew  the 
reasons  of  those  private  meetings  that  were 
bstwccB  them. 


Mr.  Ftter  Marsh  sworn. 

Mr.  Mather.  8ir,  do  you  know  the  • 
ants,  Mr.  Hales  and  Mr.  Kinnerslev  ? 

Mardh.  I  have.  Sir,  known  Mr.  Hale 
years. 

Mr.  Mather.  But  have  you  known  M 
nerKley? — M^trth,  Not  so  many  years. 

L.  C.  B.  What  is  your  business  or  e 
ment  ? 

Marsh,  I  am  an  attorney,  my  lord. 

Mr.  Mather,  Do  you  know  of  any  t 
tions  between  Mr.  Hales  and  Mr  Kiun 

Marsh,    About  ten  or  eleven  yeai 
Mr.  Hales  brought  me  a  bond  of  50/. 
by  Mr.  Rinnersley  to  me.     Mr.   Kir 
owed  him  the  money,  and  had  given 
bond  imynble  to  me.     He  desired  me  t 

Seri.  Whiiaker,  This  is  not  evidence 
signihetb  it  what  the  defendant  told  hin 

Mr.  Mather,    What  was  done  upo 
Wlmt  came  of  the  bond  ? 

Marsh.    I  delivered  it  to  Mr.  Hale 

Mr.  Mather,  Did  Mr.  Hales  owe 


>we  y 
at  all. 


money  ? — Marsh,  No,  Sir,  none 
Mr.  Cropley  sworn. 

Mr.   Lacy,    Mr.   Cmplcy,   What 
know    of  any  money -matters  betwe 
Hales  and  Mr.  Kinnerifley  ^ 

Craplcv,  I  received  ahout  607.  at  Jai 
eolfoe- house,  a  ilebt  which  was  clue 
from  Mr.  Kinnersley :    they   were  tl 
gether  ;  Mr.  Kinnersley  was  the  debt 
Hales  had  given  me  a  note  for  it.     1V1 
nersley  had  prevailed  on  me  to  lend 
hundred  and  odd  ponnds  upon  but  a  sli 
quaintance :  he  hronght  another  gentl< 
be  security  with  him  for  the  paving  it 
1  forbore  liiin  for  six  months.     (  then  c 
of  him  after  it :  w  ben  he  had  led  nie 
from  coffee- house  to   coffee-house  W 
months,  I  was  forced  nt  last  to  sue  for 
desired  me  to  sue  the  other  pnrty,  and 
him:  I  recovered  half  from  the  one, 
came  upon  him  for  the  other.    When 
to  siTvc  him  wiili  a  notice  of  a  writ 
quiry,  he  met  me  with  Mr.  ILiles  i 
tavern  in  Holborn,  about  June  or  July 
atnelvemonth.    Then  Mr.  Hales  suit 
I  am  to  receive  ahout  6  or  700/.  with 
three  months  time;  and  then  I  shall  ^ 
to  pay  that  money:    upon  that  I  st 
procedure  upon  the  Writ  of  Enquiry; 
Mr.  Hales  requcsTcd  me,  I  took  Air. 
and  Mr.  Kinnersley'*  note  for  the  pav 
it  within  three  mouths:  when  tli;it  I'i 
expired,  or  within  about  fonr  months, 
What  was  his  pnrt  to  pay  I  received  : 
way's    coffee-house:    they    were    to 
which  paid  me  I  cannot  say.    The  moi 
in  half  and  quarter  broad  |>icces :  I  rel 
take  it  in  tin-se  pieces,  being  to  trans; 
the  Allrv'.   Upm  tliat  he  touk  me  to  a  I 
abom  Yemple-bar,  and  there  changed 
L  C.  B,  When  was  this  ? 
Cropley,    It  was  in  February.    M 


St9j 


Jbt  a  lii9iemeatiar. 


A.  D.  1739* 


[240 


MKltsr sifB  me  m  Utile  netoat  the  sMue  tkne 
im  the  WMges  that  I  had  austained  iu  teek- 
iw  it;  ahout  5XH,  or  tbereabout«. 

Ilr.  Sinngf,  liath  there  been  any  appUca- 
liw  Bade,  Sir,  to  you  to  appear  aa  a  witoese  ? 

Cr^y.  Yea,  Sir,  BIra.  Kinnersley  tent  te 
4mm  BM ;  mmA  Mr.  Kienertley  also  aeot  oie 
atolls,  asd  bcaidee  that  seat  iue.a  Subpceaa. 

Mn  llrtn^cL  Caa  you  produce  that  lette  ? 
GNpigr.  1  have  it  not  here,  8ir. 
ik.Si^mmgt.    Yott  caoDui  aay  which  paid 


iaiiav,8ir? 
fwy/ry.   No,  Sir,  but  they  were  both  to- 


l^ffgfty.  Sir,  one  word  I  beg.  Did  not 
fcBalai  giro  you  a  note  for  it? 

UqdiSf.  Yei,  Sir,  you  and  Mr.  Bake 
jwdinil. 

Mi:  FHer  Beait  waa  called,  but  did  not 


Mr.  Jokm  WeU$  aworn. 

Mr.  lary.  What  do  you  know.  Sir,  of  any 
•■ly  dnefrom  Mr.  Kinnerrfey  to  Mr.  Hales? 

Wdb,  No,  Sir,  I  know  net  of  any. 

Mr.  Lacy.  Or  of  any  money  lent,  particu* 
hrij  aa  bondved  pound  ?  Was  Mr.  Kinnersley 
Mtosi  lo  yon  ? 

Mb,  Yes,  Sir,  an  hundred  poond  ■ 

*ft.  Itfcy.   Who  lent  hin  the  money  to 

wmk,  Mr.  Hales,  as  Mr.  Kionersley  told  me. 
Mr.  £snr.  Who  paid  you  the  money  ? 
Mb.  Mr.  Kinnersley. 
Mr.  Ian.  Was  Mr.  Haica  present  ? 
lUk   I  do  net  knoW|  Sur.    It  waa 


Mr.  John  Sunpsoa,  hanker,  sworn. 

Mr.  Lacjf,  Sir  what  do  you  know  of  money 
Mr.  Kinnersley  to  Mr.  Hales  ? 


Smf§9n.  1  know  ootMr.  Hales,  Sir.  1  never 
vabrnk  out  of  Court. 
Mr.  Lacy.    Was  Mr.  Kinnersley  indebted 

oaipsM.  Some  months  ago  he  borrowed  of 
MM,  on  some  lottery  tickets. 

Mr.  Jjify,  Who  paid  it  you  off? 

fiw/Moa.  I  was  not  at  the  shop  when  the 
■■cy  waa  paid. 

Mr.  Lacff,  But  do  you  not  know  how  it  was 
tmktTjgfd,  whether  by  money  or  notes,  and 
Ayvhsm? 

Simpmn,  No,  Sir,  I  cannot  say.  It  doth 
■t  apfpsr  by  oor  books. 

Mr.  Xflcy.  Tk^  you  know  or  not  that  Mr. 
Irim  paid  it,  or  gave  a  note  for  it? 

iimpMtn.  I  do  net  know,  Sir. 

lb.  Lacy.   Dolb  any  note  by  your  books 
given  for  it,  or  by  whom  paid  ? 

No,  Sir ;  if  it  had  bef*n  paid  by  any 
than  Mr.  Kinnersley 's,  1  believe 
te Jl  fsooU  bare  appeared  by  our  books. 

Mr.  Fowter,  banker,  sworn. 

lisaai/sy.    Stf,  I  lieg  you  to  say  who- 
i»  you  HBMmber  that  1  gave  you  a  note 
ifiMnAflCMr.Halw'i? 


FomUr,  You  never  mentioned  his  name.  I 
lent  you  money  upon  lottery  tickets;  but 
know  nothing  of  that  you  mention. 

KiiMcriley,  Did  not  Mr.  Hales  come  to 
yottf  shop,  take  up  the  note,  and  pay  it  ? 

Ftaoler.  No,  Sir,  not  that  I  know  Oi.  I  never 
saw  him  tiiere. 

Mr.  John  Hall  sworn. 

Mr.  Lacy,  Did  you  ever,  Sir,  give  a  note 
upcjQ  Mr.  Halea's  acoount  and  for  bis  money  ? 

JialL  Not  that  1  know  of. 

Mr.  Lacy.  Did  you  at  his  desire  pay  aay 
money  ? — HalL  No,  Su*. 

Mr.  Xocy.  Do  you  know  any  peraon  that 
did?— lir«/lNo,Sir. 

^j.  Wkitaker.  Do  you  knew  Mr.  WiUiam 
Hales  ?  Will  you  give  us  an  account  of  his 

Keying  you  a  bill  iu  broad  pieces,  and  whether 
e  asked  you  to  write  hie  name  Wells.  He 
can  tell  very  well  I  know  what  this  meaner 
Did  you  give  any  note,  or  set  your  naaM? 

liaU,  I  set  my  name. 

Serj.  Wkitaker.  Do  you  knew  your  name 
again  :' — Hall.  Yes,  Sir. 

Sepj.  U^A4VaW.  Is  that  your  name? 

HaU.  Yes,  Sir,  it  h, 

Serj.  WhUaktr.  When  did  they  get  it  of 
you  ? — Hall.  On  August  17  last. 

Serj.  Darnell,  1  see  not  hew  my  brother 
makes  this  efridence  against  Mr.  HueSk  He 
is  not  brought  for  him  but  fur  Mr.  Kmnersloy ; 
and  they  would  cross-examine  him  as  to  Mr, 
Hales. 

Serj.  WhUaker.  I  agree  with  yon  that  we 
could  not  have  called  him :  but  my  brother 
Eyre  called  him  to  shew  that  there  was  a  pro- 
missory note,  he  denies  it.    Well,  1  submit  it. 

Serj,  Eyre.  My  lord,  we  have  gone  through 
the  evidence  opened :  but  I  would  mention  this 
as  to  the  examination  before  sir  Uiohard  Ho|)« 
kins.  It  is  suggested  that  Mr.  Kinnertdey 
would  have  confessed,  but  that  he  was  in- 
terrupted by  Mr.  Alitford.  It  is  plain  that  he 
bad  spoke  to  all  that  was  material  both  as  to 
the  note  ami  the  indorsement :  J  think  that  it 
is  therefore  wrong  for  them  to  say  that  he 
would  have  confessed  more,  but  that  he  was 
interrupted.  But  we  will  call  a  gentleman  to 
shew  in  what  a  candid  miuiner  he  behaved, 
and  that  he  was  not  interrupted  in  the  i^anner 
that  hatli  been  suggested. 

Rev.  Mr.  John  Hayes  sworn. 

Neij.  Eyre.  Were  you  present,  Sir,  at  sir 
Ridiard  Hopkius's,  when  Mr.  Kiunentley  was 
exaniineil  ? — Hayes.  Yes,  Sir. 

Serj.  Eyre.  What  did  you  observe  about  his 
being  stopped,  or  did  he  fully  speak  hb  mind? 

Hayes.  I  remember.  Sir,  that  Mr.  Mitford 
desired  him  to  be  cautious,  and  not  too  free 
iu  making  bis  reply. 

Serj.  Eyre,  J  only  ask  you,  whether  lie 
had  nut  then  spoke  both  as  to  the  note  and  the 
indorsement  ? 

Hayes,  He  said  that  the  note  was  bis.  He 
said  that  aa  to  the  indonement,  he  had  heard 


347] 


S  GEORGE  IL  Trial  of  Wnu  Hales  and  T.  Kimerdey^ 


that  it  wu  indorsed  by  Mr.  Edwards,  but 
([new  not  how  it  oaroe. 

Serj.  Eyre.  Do  you  aprirehend  that  his  beinnf 
eautioned  was  to  be  careful  in  his  answer,  or 
that  referred  to  the  answers  that  he  had  al- 
ready madeP 

Hayet.  I  apprehended  that  the  caution  was 
to  be  careful  in  his  answers. 

Mr.  Grants  sworn. 

Seij.  Eyre.  Were  yon  present  at  the  «xa« 
nination  of  Mr.  Kionersley  before  sir  Richard 
Hopkins? 

Grants,  Yes,  Sir,  Mr.  Kinnersley  sent  for 
nie  when  he  was  first  taken  up.  I  suppose  it 
was  because  1  married  a  relation  of  his ;  lor  1 
knew  nothings  of  any  transactions  between  him 
and  Mr.  Hales. 

Seij.  Eyre.  I  ask  you,  whether  he  fully 
apoke  his  mind  about  the  note  and  the  indorse- 
ment, or  whether  he  was  interrupted  therein  ? 

Grants,  Sir  Richard  asked  him,  whether  he 
knew  the  note  and  the  indorsement?  There 
then  passed  a  sort  of  a  squabble  between  him 
and  Mr.  Mitford. 

Serj.  Eyre.  Did  you  observe  that  any  gen- 
tleman interrupted  Mr.  Kinnersley,  or  cau- 
tioned him  as  to  his  answers  ? 

Grants.  There  was  an  interruption:  but 
what  it  waa  I  could  not  particularly  hear. 

X.  C.  B,  Hare  you  done? 

Serj.  Eyre.  Yes,  my  lord. 

8er|.  Whitaker.  My  lord,  lobserre^that  the 
defence  that  they  have  made  is  for  one  to 
throw  it  upon  another.  Mr.  Kinnersley  thinks 
that  Mr.  Hales  is  as  deep  as  he  can  be,  and 
therefore  may  bear  the  load:  But  then  my 
lord,  Mr.  Hales  wants  to  retort  it  upon  Mr. 
KiDDers!ey  ;  but  the  drill  of  both  is,  that  Mr. 
Kinoerslev  maj^  get  out  as  he  can.  You  will 
observe  the  defence :  There  is  a  pretence  of 
mutual  dealings,  and  that  this  note  was  given 
in  discharge  of  the  balance  of  the  account.  I 
submit  whether  there  hath  been  any  evidence 
of  any  dealings  to  an^  such  sum :  If  not,  to 
what  purpose  was  it  given  ?  If  it  was  to  raise 
money,  was  it  for  a  fraudulent  purpose,  or 
not?  If  it  was,  they  are  both  equally  guilty. 
But  the  pretence  now  is  this,  Mr.  Hales  was  a 
bankrupt:  and  it  was  therefore  proper  for 
them  to  have  a  third  person,  in  whose  name  to 
transact.  Now  how  could  that  be  proper,  if 
it  was  a  person  over  whom  they  had  no  power? 
Would  any  one  be  willing  to  take  notes  in  the 
name  of  a  stranger?  Is  a  stranger  to  be 
trusted  with  such  a  sum?  No.  If  not,  how 
then?  Here  is  one  man  to  write  such  a  note 
for  another  in  Mr.  Edwards's  name,  to  what 
purpose?  Why,  in  order  to  charge  Mr.  £d- 
wanis  with  the  money :  Else,  what  si^nifieth 
the  indorsement?  The  question  then  is,  was 
Mr.  Edwards's  hand  then*.?  And  did  Mr.  Kin- 
nersley know  it  ?  They  that  woukl  have  it  that 
Mr.  Kinnersley  waa  very  innocent,  say,  that 
he  knew  nothing  at  all  that  Mr.  Edwarda'a 
liand  waa  there.  Well,  when  he  cornea  to  be 
Silied  upon  iod  iinportiiiied  Ibr  the  BMoey  by 


Mr.  Bird,  what  doth  he  say  ?  Wbr,  M 
wards  is  a  rich  man :  I  am  an  undone 
You  must  therefore  resort  unto  him. 
was  said  not  only  upon  the  sight  of  the 
but  before  it  was  shewed  to  him.  U' 
told  Mr.  Bird  that  he  knew  that  he  hai 
a'  note  of  his  so  indorsed.  Gentlemen, 
of  this  nature  are  only  to  be  detected  h 
cumstanoes.  They  will  not  call  person 
witnesses  to  these  transactions.  If  thia 
fair  dealing,  it  waa  proper  to  have  called 
one  hooest  man  to  give  an  account  that  1 
present  thereat,  and  privy  to  this  transi 
But  instead  of  tliat*  which  is  the  wickc 
cannot  tell ;  but  it  is  plain  that  here  is 
trivance  to  charge  an  innocent  person 
auoh  little  things  as  evidences  of  transi 
of  a  note  of  fifty  or  thirty  pounds,  or  th 
are  not  to  go  against  it.  Circumstanci 
not  make  a  plainer  proof  than  here  is  < 
gery.  A  note  drawn  on  such  a  little  ps 
so  slovenly  a  manner,  detects  itself.  He 
plain  forgery.  The  question  is,  who  is 
of  it ;  and  whether  there  is  not  sufficieol 
that  the  defendants  are  the  persons  guilty 
Mn  Strange.  My  lord.  I  beg  it  may  b 
sidered,  whether  it  is  not  criminal  to  giv* 
a,  note.  At  aeveral  times  he  declared  bel 
saw  the  note,  that  the  name  of  Mr.  £i 
was  on  the  back  of  it.  If  the  jury  are  • 
mind,  as  to  one  fact,  it  is  a  demonstratio 
the  name  was  upon  it  when  the  note  waa 
If  the  iury  will  look  upon  the  note,  it  «i 
pear  tnat  something  was  written  upon  th 
and  nothing  more  probable  than  <  free.' 
any  imagine,  that  Mr.  Edwards,  whose 
is  there,  would  ever  write  a  frank  upon  s 
If  therefore  the  jury  is  of  my  opinion 
observation,  that  there  was  at  first  '  Fr 
muel  Edwards,'  it  is  impossible  to  imagi 
that  it  was  wrote  there  before  the  no 
drawn.  My  lord,  that  the  jury  will  tt 
their  view.  My  lord,  there  have  been  ( 
things  said  as  to  whose  benefit  this  sh( 
for,  that  it  is  plain  that  Mr.  Kinnersl 
ceived  no  benefit  by  it,  that  therefore  it 
not  probably  be  his  forgery.  My  lor 
plain  by  the  account  that  we  have  given 
their  correspondence,  that  there  waa 
thing  carrying  on  between  them,  whict 
be  of  a  very  private  nature.  Doth  it  e 
pear  for  whose  benefit  it  was  ?  I  am  fsi 
an  undone  man ;  you  cannot  expect  it 
but  must  apply  to  Mr.  Edwards  who  in 
it:  And  therefore,  though  he  made  I 
liable,  that  aignified  not,  as  he  was  at  tb 
time  liable  to  many  more  actions.  Its 
that  they  were  obliged  to  give  the  note 
name  of  another  person  who  was  respc 
having  no  credit  of  their  own.  As  to  tl 
jection,  for  whose  benefit,  we  appreheoc 
no  consequence ;  they  might  probably  s 
between  them.  There  was  another  thi 
deavoured  to  be  proved,  viz.  such  a  de 
from  Mr.  Sjnnersley  to  Mr.  Hales, 
they  thought  it  naceasary  to  attempt  s 
of  tbatkiAdyif  they  bavefaiied  in  that  p 


J6r  a  Mitiiemeanor. 

t  npinion  wbb  that  Uiey 
1  [»nol'  of  Uiat  kini),  wliicii 
Wh«l  h»»e  Ihej  ^aiueJ  ? 
tegiveuof  l,S60l  (sver^ 
rrom  *  clergymin  in  his 
n),  lliey  hare  prelcDaed  lo  nrcie 
one  bond  of  50/.  which  halb  not 
I.  but  unl;  Mr.  Hales  came  to  Mr. 
i  tnlil  him  ihi*,  which  1  Rpnrebend 
iBkntrriileccF  ;  Hart  ihey  brought  lliebooJ, 
il^iW  liarF  aj>|«urerl  whrthw  true  ornnl: 
TWiiiMi  )irool  (kit  Mr.  Kinnenlfy  waa  in- 
tttd  to  Mr.  lUlw.  What  Mr.  Ciopley 
■■k  •■Hi'>i>*lh  lo  Qoninrc  than  about  69  or 
*■  I  BiuM  lubmit  il,  whether  they  hare  given 
I  w— ■— tUa  uccouiil  of  lliii  affair.  My  lord, 
IM  ta  iMppincm  Ihat  there  arv  such  g-encral 
■niMnnrr*  *«  leiiiJ  lo  itelecllhein. 


•kaU  ailiii*  with  yuurconnsel  vrhelheritbe 
|n|Bi' :  I  wouM  only  arquaiai  voii  that  it  is 
MNfwUr.  If  yuu  would  he  heard,  or  call 
m;  vitaeo,  if^ou  hare  any  thing  material  fur 
ym  Mnce.  it  shall  be  heard:  But  if  you 
F'fac*  BUT  lliing  af\e,  ibe  ciiuasrl  tiir  the 
■■(  (boat  taie  liberty  to  answer  ;  or  if  you 
t^;  tDy  wiloeu,  they  must  have  liberty  to 
OTM-mminc,  ar  to  bring  any  other  CTitlvnce 
mtnvie. 
tkmmin 
*«■*.    I 

tt)|tMlnciBn  I  belicTe  will  aci]uieace.  Mr. 
Msim  niA  50'.  i  he  took  it  in  that  ^cntliv 
■wS  naoic  that  was  colled  for  b  witness : 
In,  Hr.  Took  hail  oae  hundred  and  liny 
jMdaMe  :  Another  Krn'leman  (Mr.  Rurtnii) 
m  Mte  of  1W(.  wliirh  Mr.  Hales  gare  him 

inliiDBted  that 


LC.B.  Mr.  KiDnmley.yo 
jm^mM  brinp  nothing  new. 


Stntrtlfy.  My  loni,  at  ■  public  coffee- 
kMt  he  4Mir«)  me  to  lay  down  'isl.  anil  the 
■Am  ire  DOW  id  court  which  were  acluatly 
■MRd  for  M  tnuch  money.  And  as  to  this 
t,  I  all  God  lo  witneiB,  thai  this  note  1 
BB|i<Ni  no  other  uccuuni  hut  on  settling 
'»  exchange  for  other  oolea  which 
thai  nun.  He  directed  me  how 
Ic  the  paper  out  of  hi*  book,  and 
Mt,  whence  I  now  apprehend  that 
■li^  name  was  then  on  the  hack.  I 
Btny  in  his  altering  any  lelleni:  I 
U  not*  for  want  of  niouey,  fur  a 
i>  Mill  du«,  and  call  n[iou  him  to 
_  liatnw. 

JItt.  Gen.     My  lord,   whatefer  Hr.   Kin- 
Iv^  baib  avrrrnl  ia  without  wilneiR. 

Z.  C.  B.  When  persons  are  proacciitMl  ca- 
AAy,  (hr  bw  a1lnwr-th  hint  not  cnuosel  us  in 
In:  iWrHWe,  wliai  a  person  Bll^ts  hiinwir 
Mitfe  tafcati  iiotirr  "t-  Upon  a  charge  of 
Badiiuiaunr  y>-ii  nisk-ynar  dvfnKirhy  coun- 
WL  Md  tber  Uau-  ih"  raw.  |i  doth  nut  avail 
"*yif  wint  a  prrt<io  lailh  hitnself.  and  cluil 
7  wy  ariil*  otn,  eicr|>i  «upp«rlMl  by  priKif. 

c  viHJat*  u  wdgtit  u  pfOTed, 


A.  D.  172d.  [950 

Kianerileif.  Hylord,  arc  policies  no  pmnfT 
Here  ia  n  cenilicale  from  ihe  proper  nfticer. 
Sir,  I  insist  upno  it  that  yon  do  me  justice  in 
ihis  matter.  I  will  be  coulent  tu  sufl'crilcaili 
if  this  be  not  »a, 

L.  C.  B.    You  are  not  lo  be  ooir  regarded. 

1,  C.  B.  Gentlemen  of  the  Jury,  this  i( 
an  indictment  againut  Thomas  Kinnerslry, 
clerk,  and  William  Uales,  late  uf  London,  gold- 
smith, Ibr  forging  and  |iub1iihing  an  Indorse- 
metit  on  aproinissury  iioie,  for  the  paymcnl  of 
t,250l.  to  Samuel  lidwanls,  esq.  An'd  the  in- 
diclnient  sets  tbrth.  That  the  defenilanls.  har. 
in  their  custody  a  promissory  tiote  subMrribed 
l>y  Thomas  Kinneraley,  and  bearing  date. 4u> 
etist  tC.  17S7,  whereby  Kiunersley  promised 
to  pny  1,900/.  to  Samuel  Edwards,  e»q. «  hliin 
three  moulhi ;  that  the  defenilantt,  having  ibis 
noie  in  their  coslodv  wilh  an  inleiitinn  to  de-' 
crive  and  defrauil  llie  same  Samuel  Edwanls, 
etq,  and  being  persons  of  evil  fame  and  renu< 
latioii,  did  falsely  Knd  fr«iidulenlly  liirge  and 
eonnlerleil  on  this  note  for  1,36(»/.  payahltt 
i«iihiu  three  months  after  dale  lo  Samuel  Ed- 
wards, esq.  or  bis  order,  an  iodoraeiuent  (o 
this  eAect ; 


llierpbv  intending  to  charge  Mr.  Edwards  ■■ 
the  in  jorser  of  Ihal  note  wiih  the  payment  of 
the  1,2601.  coDtDined  in  tbf  lioily  of  the  aaid 
□ole ;  thai  nfier  Ihry  had  Ihrgnl  and  counter- 
lieiled  ihis  iiidorsemeot  ufion  Ibis  note,  and 
knowing  il  to  be  a  couoterleil,  ibey  did  publish 
tbe  «sid  note  so  iudursed.  Genllenten,  the 
counsel  on  Ibe  bebalf  of  the  prosecntion  have 
Eic(|iiainled  you  Ihal  ihey  look  npaa  Ibis  a*  k 
contrivance  uf  both  ilelendaots  lo  eairy  on  this 
forgery  upon  what  they  suppose  at  first  raerelj 
afrank;  Ihat  the  name  of  Mr.  Edwards  iipiin 
the  cover  of  a  leiirr  wiih  the  word  ■  ffree ;'  that 
the  word  '  firee'  halb  been  at  tbe  time  of  tba 
indorsement  altered  and  made  *  for  the,'  and 
the  words  •  value  received'  added  to  Ihat,  and 
made  the  indorsemenl  to  thi»  note.  For  the 
corrnbaraljng  of  ihia  ilicv  have  called  several 
witnesses.  Fi.st,  Tbomas  Mndilox'was  called, 
a  servam  to  Mr.  Edwards.  He  tells  you  that 
Mr.  Edward*  lives  in  Duke-street,  Weit- 
minsler,  and  that  the  defendant  Hales  lived 
near  over- against  him;  that  Ibe  defendant 
Hales  frequently  sent  covers  over,  upon  which 
be  bail  several  trankx  dirrrlrd  lo  several  per- 
son!;  Ihutlhlsbalb  hren  Ibe  custom  (iit  se- 
veral years  ;  that  Mr.  Edward*  used  to  send 
iheiii  over  indnrscil  with  his  name '  Samuel  Ed- 
wards, ffree.'  He  tnith,  that  bis  usual  waj 
svni  tu  iodurse  the  whole  BuperBCrijiliun  ;  but 
that  iasi  snmni'T,  some  lime  about  July,  there 
were  six  covers  sent  over  by  tbe  dcfeoitaiit  Ih 
Mr,  Edwards's  house  by  the  defendant  Uales, 
desiring  ibat  ibry  might  be  franked  with  only 
'Samuel  Edwards  uree,'  without  writing  tba 
whole  supTBcripiioii ;  that  Mr.  Edwards  de- 
dined  Ihal,  saying  Ibftl  he  Qcvn  &\&\\-.  >t« 
liief etlira rel'tued  liim,  inl  t^<MC  ca^&n  ««<:« 


151} 


ft  GE0&6&  n.         Trial  0/  JF^  HoZif  Mnd  T.  Kinntrdey,         [«MI 


not  iodorsed,  but  wcte  prodaced  here.  He 
hath  been  asked,  Whether  he  knew  of  any 
correspoDdcnce  besides  this  of  franking  letters 
betivecD  Mr.  Edwards  and  Mr.  Hales;  and 
nhethrr  he  knciv  ofany  between  Mr.  Edwards 
and  Mr.  Kinncrsley?  He  answered,  that  he 
doth  not  know  of  any  whatsoever.  Another 
servant,  one  Anne  Clarko,  comes  and  produoeth 
a  paper  of  names  that  was  brought  over  from 
the  defendant  Hales  to  Mr.  Samuel  Edwards's 
house,  in  order  lor  hiui  to  frank  letters  to  those 
persons,  and  write  the  whole  superscription  as 
at  other  times.  She  produced  the  paper  io 
court,  which  she  said  that  she  received  from 
3Ir.  Hales's  servant.  And  Mr.  Booth  being 
examined  thereto  declares  it  to  be  the  prop^ 
hand  of  tlie  defendant  Hales,  with  whose  writ* 
ing  he  hath  been  well  acquainted,  especially 
since  his  bankruptcy,  he  being  a  clerk  in  that 
commission.    In  this  paper  is  wrote, 

Two  to  John  Pratt,  esq.  Bristol. 

Two  to  Mr.  Levett,  Huntington. 

Two  to  Stephen  Mitford,  esq.  Exeter. 
They  make  use  of  this  evidence  to  shew  that 
there  was  a  sort  of  an  attempt  to  get  covers 
with  these  names  franked,  hoping  or  supposing 
that  there  mi$;ht  be  a  space  left  sufficient  to 
write  a  note  of  this  nature.  Mr.  Booth,  who 
was  called  to  prove  the  hand -writing  of  Mr. 
Hales,  was  cross-examined  by  the  counsel  for 
the  defendant,  whether  he  knew  of  any  traffic 
of  Air.  Hales  since  his  bankruptcy.  lie  saith, 
that  he  doth  not  know  of  any,  but  that  he  was 
well  acquainted  with  his  baud-writing,  being 
employed  in  the  affair  of  the  commission  of 
bankruptcy.  BIr.  Thomas  Bird  was  next  called 
and  examined  as  to  the  circumstances  of  the 
publication  of  this  note.  He  tells  you  that  this 
note,  dated  August  16, 1727,  for  the  forged  in- 
dorsement whereof  both  the  defendants  are  pro- 
secuted, was  brought  to  him,  in  order  to  take 
up  money  upon  this  note,  and  further  security, 
which  Mr.  Hales  gave  in  March  last ;  that  it 
was  brought  in  the  manner  that  it  now  is,  and 
no  alteration  made  either  in  the  body  of  the 
note  or  in  the  indorsement,  but  it  stands  and 
remains  in  the  same  manner  as  when  he  first 
received  it ;  that  when  Mr.  Hales  came  to  liim, 
he  pruposeil  to  borrow  of  him  750/.  upon  the 
credit  of  this  note  for  his  security,  and  likewise 
upon  his  own  note  for  the  payment  of  this  mo- 
ney ;  that  he  had  been  requested  by  a  friend  of 
his  in  the  morning  before  to  accommodate  Mr. 
Hales  with  this  money  upon  the  credit  of  a 
note  which  the  person  hud  in  his  hand,  and 
which  was  the  same  note ;  and  that  on  tlie 
aAernoon  of  the  same  clay  [March  20^,  while 
he  was  at  the  Hudson's- Bay  house,  in  Fen- 
church -street,  Mr.  Hales  came  to  him  with  the , 
note,  anil  he  then  lent  him  the  money  for  14 
days ;  thit  he  then  desired  Mr.  Hales  to  write 
ioiiie  paper  to  testify  the  receipt  of  the  money, 
and  be  a  further  security  to  him ;  and  that  the 
laid  Mr.  Hales  thereupon  wrote  a  promissory 
note  dated  the  same  day,  wherein  he  promised 
the  re  pa^  ment  of  this  7501.  in  14  days,  which 
■olo  was  idwcrilwd  bjr  the  dffendant  BaJca 


himself;  that  the  sum  of  moaey  waa  mada  ap 
in  several  bank  notes ;  that  he  delivered  thoa 
to  the  said  defendant  Hales,  and  took  this  Mia 
and  Mr.  Hales's  own  note,  as  a  security  forjht 
said   money ;   that   April  3   following. 
Hales  brought  400/.  which  he  indorsed 
his  own  note ;  and  thai  the  rest  of  the  no 
remains  due.     He  tells  you,  that  when  he 
heard  that  the  defendant  Hales  waa  •Pffl^ 
bended  in  September  last,  he  sent  to  ona  Took* 
kins,  an  attorney,  delivered  this  note  to  hiai  la 
go  to  Mr.  Kionersley,  to  get  this  money  iv 
him.    The  account  that  he  received  waa,  thai 
Mr.  Kinnersley  was  out  of  town,  so  thai  ha 
could  not  meet  with  him.  At  length  Mr.  Tm* 
kins  intimated  that  Mr.  Kinnersley  carad  i^|| 
to  see  him,  but  would  come  the  next  dxf^ 
Mr.  Bird  himself  upon  this  affair.  Acoordiartl 
on  or  about  the  16th  of  September,  tha  K 
fendant,  Kinnersley,  came  to  Mr.  Bird  at  his 
compting-house :  Mr.  Bird,  not  kuowingwli 
he  was,  seeing  a  clergyman  come  in  his  govai 
and  looking  a  little  at  him,  he  said  hia  aiBi 
was  Kinnersley.    He  hereupon  said  that  bf 
had  a  note  of  his  hand  left  with  him  for  a  •» 
curity ;  to  which  he  replied,  1  know,  Sur,  thil 
you  nave,  and  it  is  for  1,S60/.  payablo  la  thni 
months  to  5Ir.  Edwards  or  his  order ;  that  ht 
said  that  the  note  was  of  his  own  hand- wriliap 
but  immediately  added,  How  it  came  to  baaif 
dorsed  by  Mr.  Edwards  1  know  not.    Thi^ 
gentlemen,  you  must  take  particular  notioaef 
because  this  was  tbe  first  mention  of  Mr.  U> 
wards's  indorsement:  at  that  time  Mr.  mm 
had  not  mentioned  that,  nor  shewed  biAlhl 
note;  when  Mr.  Kinnersley  haviojp  owneathi 
note  to  be  his  hand- writing,  immediately  a '^'' 
but  how  it  came  to  be  indorsed  by  Mr.  £di 
I  know  not ;  naming  thus  the  particular  p 
who  was  the  indorser  of  this  note.    He  nMb 
that  Mr.  Kinncruley  was  in  a  great  oonatcmii 
tion  at  that  time,  and  said  Uiat  he  waa  an  aa- 
done  man,  among  other  expressions.    And  hi 
said  likewise,  that  BIr.  Edwards  was  a  gCBll^ 
man  of  substance  \  and  this  he  declared,  Uioagil 
Mr.  Bird  had  not  shewn  him  tbe  note  at  tB|( 
time:  I  am  (said  he)  an  undone  man;  Ik*- 
£d  wards  is  a  man  of  substance.    This  he  Mi4 
before  that  the  note  was  shewn  to  him,  or  wm§ 
declaration  was  made  by  Mr.  Bird,  relating  tt 
Mr.  Edwards's  being  the  indorser  of  this  nolii 
He  said  further  that  he  was  nut  in  a  capacitf 
to  pay  this  money ;  and  that  tliey  roust  appqf 
to  Mr.  Edwards,  who  was  a  substantial  aia% 
for  it.    Gentlemen,  this  was  made  use  of  aa# 
sort  of  defence  at  this  time  to  avoid  this  thiog^ 
to  put  it  off  from  himself  by  this  argooMBti 
why  Bird  should  not  come  upon  KinneraliEy 
himself,  who  was  uncapable  of_payinr  hnBf 

Iwards, 


k 


but  take  his  remedy  against  Mr.  Edi 
was  a  substantial  man.  He  was  cross-i 
mined:  tbe  counsel  for  tbe  defiendant  asJbed 
who  was  the  person  that  recommended  Mc» 
Hales  to  him  as  the  borrower  of  this  monev  2 
It  was  answered.  That  it  was  sir  Bibv  Lmu^ 
He  was  asked  on  whose  credit  he  lent  ut  no^ 
nej,  |h,iialfii'»  tc  Ur.  Edwaada'tf  tt  vw 


WpA,  m  it  mint  tiv  h)  such  a  ir&ss* 
!B,  aiNm  this  Ihenote  mts  read  ^  for  it 
rivea  directly  from  the  hands  of  the 
t  flflin,  tfattt  was  vofiicient  cau^e  to 
Mie,  and  hy  it  hefore  you.  Accord - 
ptpeara  to  bw  dnte  Augmt  16,  1727» 
MMiisMfy  iMACy  nimriug  thns : 

■liae  la  pay  to  Saai«el  £dwardi|  eiq. 

4irft  witiiiu  tbrae  HiOBiha  after  date, 

lif  ftw#lfia  huulred  and  aixty  pounds, 

noBMrad, 

-*  '*  Ttaoxaa  KuaEiisLsr." 

Ma 

BCi  the  {ndorsemeDt :  and  there,  there 
■D  the  top,  **  Pray  pay  to  the  order 
I  there  ia  a  large  Diana,  then  comes, 
ae  rtofrived,"  and  then  there  is  the 
ioB  ««  Samuel  Edvrards."  Gentle- 
m  ibis  it  is  proper  to  take  notice  of  the 
DBS  made  by  the  counsel  for  the  prb- 
011  the  manner  of  the  writing  of  this 
mt.  Thev  obserre  that  this  must  be 
pffiom  by  Mr.  Edwards  of  his  name  for 
Br  the  nassm^  of  a  letter  free  :  it  ap- 
rv  probable  frum  the  manner  of  bis 
nrank.  « Free '  and  not  *  frank '  is 
Alt  he  makes  use  of:  and  upon  what 
v  what  remains  in  this  note,  they  say, 
wt  top  it  appears  that  it  must  be  cut 
wmie  other  note,  and  that  there  is  an 
!  irhere  thev  suppose  that  some  other 
BK ;  that  there  is  the  appearance  of 
If,  not  a  blot,  but  tlie  appearance  of 
nder  of  a  lelter  or  figure  on  this  place, 
!  appearance  of  a  little  dash  from  it. 
say  that  '  for  the'  issubsiiituted  for 
*  firec  ;•  that  it  appears  by  the  ihick- 
le  letters,  by  the  ink,  and  by  the  man- 
ein  the  letters  are  put  thore  ;  anil  by 
of  tlie  ff  which  !\ir.  Kdnanls  makes 
ird  *  ffree ;'  and  that  there  is  still  the 
ee  of  the  remainder  oFone  or  botli  the 
>on  this,  gentlemen,  you  will  consider 
the  o  and  the  r  have  not  the  appcar- 
ome  other  letters  under  them,  aud  bo- 
e  /*and  the  r.  It  is  plain  upon  sight 
tne  other  letters  seem  wrote  of  the 
Rigth  and  thickness  wIJi  the  /*  and  r. 
«Gms  paler  and  thinner,  ..ud  of  a  dif- 
k  from  the  other  letters.  And  then, 
!n,  the  word  Mho'  is  here  written  at 
Yon  will  consider  whether  this  seems 
are  been  from  a  nect'ssity  to  put  some 
ird  to  fill  the  whole  compass  of  the 
ree.*  Now  •  the '  seems  not  wrote  at 
le  time,  and  with  the  same  ink  with 
eceired.'  If  this  had  liern  wrote  all  at 
etime,  it  is  prett}'  extraordiuary  that  it 
■ol  hare  been  wrote  even.  The  /  is 
a  strait  line  even  uith  *  value  received,' 
I  sioks  a  little,  an*]  the  r  comes  under. 
D  oonsider,  gent!emen,  whetficr  there 
icicat  room,  and  whether  this  was  the 
r  patting  it  so.  Tfaese  considerations 
t  we  of  to  make  it  probable  that  it  was 


A.D,  1729. 


[254 


wrote  at  difllprent  times :  if  so,  it  ia  most  pro* 
bable  that  it  was  at  first  *  free,*  and  that  th« 
otiier  worda  were  substituted  aflerwards.  8o 
that  these  are  the  obserrations  as  to  the  manner 
of  writipg  it,  wluch  you  are  to  consider  whe- 
ther they  are  tme,  and  there  be  a  foundation 
for  them  or  not.  Mr.  Spicer  then  was  called, 
who  hath  been  a  clerk  to  Mr.  Edwards  in  th« 
Escfaequer  between  ten  and  eleven  years,  but 
hath  been  in  his  service  about  twenty- four 
years.  The  note  was  shewn  to  him,  and  h^ 
teils  you,  that  as  to  the  name,  he  takes  it  to  \m 
the  proper  hand-writing  of  Mr.  Samuel  Ed- 
wards, nis  master:  the  J  he  also  counts  to  b* 
bis.  Upon  his  observation  and  oath,  which  it 
evidence  to  be  left  to  yon,  the  word  *  for  '  i» 
wrote  oyer  otiier  letters,  and  he  believes,  upoa 
his  oath,  that  the  first  word  was  '  ffree.'  Htt 
saithflhat  Mr.  Edwards,  vrhen  he  mdcetb  % 
frank,  makes  nse  of  a  ^as  in  the  mauoer  that 
it  here  stands.  If  it  was  made  fbr  *  valae  re- 
ceived '  at  first,  it  is  pretty  extraordinary  that 
a  ff  shouM  be  written,  and  not  a  single  f  as 
usual.  Wh^  (saith  he)  it  is  my  maater's  inaal 
way  of  writing  '  ffree.*  And  then  he  saith  thai 
he  always  wrote  ^ ffree'  and  not  'frank;' 
which  is  material,  as  the  word  *•  frank '  might 
not  so  well  correspond  with  tlus  alteration.  Hs 
saith  that  the  r  seems  visible,  and  to  stand  be- 
tween the  0  and  r.  You  ^11  see  whether 
there  be  the  remainder  of  any  such  letter  or  no  $ 
since  he  aaith  that  he  doth  think  that  the  r  ia 
visible.  He  tells  you,  that  as  he  is  clerk  \m 
ftlr.  Edwards,  so  he  is  acquainted  with  bis  pri- 
vate affairs,  relating  to  his  estate  and  the  like» 
and  that  he  doth  not  know  of  any  money  trans- 
actions between  his  master  and  either  of  the 
defendants  ;  that  he  is  so  well  acquainted  \i  ith 
his  affairs,  and  the  nature  of  his  employment 
under  Mr.  Edwards  such,  that  he  believes  that 
if  any  such  dealings  had  been,  it  would  have 
come  to  his  cognizance.  He  tctU  you,  like- 
wise, that  Mr.  Edwards  is  not  a  person  that 
nseth  to  deal  this  way  :  it  was  very  proper  ta 
ask  him  this,  because  it  is  common  for  many 
persons  to  indorse  notes  in  this  manner,  m 
saith  that  it  is  not  his  usual  custom  :  it  cometb 
not  into  his  public  business ;  and,  as  to  his  pri- 
vate transactions,  he  never  knew  him  to  do  it. 
They  were  then  going  to  call  a  witness  to  prove 
the  body  of  the  note  to  be  Mr.  Kinnersley'a 
hand-writing.  Upon  this,  Mr.  Kinucrsfey 
took  upon  him  to  admit  that  it  was  all  his  own 
hand -writing;.  So  then  it  is  to  be  taken  for 
confessed,  that  tlic  body  of  the  note  was  his 
writing.     It  is  written  in  this  manner, 

^'Au^ii  16,  ir^r. 
"  f  promise  to  pay  to  Samuel  Edwards,  esq. 
or  his  order,  three  months  atier  date,  the  sum 
of  twelve  hundred  and  sixty  poundii,  Ihr  Taloe 
rcoeived,  Thomas  Kimmebslet." 


"  -f .  li«60. 


Well,  gentlemen,  after  this,  the  cpiinscl  for  the 
prosecution  sny,  that  Mr.  Kinncrsley  iKith  ia 


855] 


3  GEORGE  II.         Trial  qf  Wnu  Haks  and  T.  IRnnerdey^ 


effect  confened  as  ranch  as  amoanli  to  what 
tliey  stand  io  need  of  to  oonvict  bim  of  thiafor* 
)(ery.  First,  they  call  Mr.  Wrig^ht,  who  was 
present  at  the  exanaination  of  Mr.  Kinnerslev 
uefore  sir  Richard  Hopkins.  Mr.  Wrii^t  tells 
\ou,  that  at  that  time  tlie  defendant  Kinners- 
ley  owned  that  the  note  was  all  his  own  hand- 
writing ;  that  Mr.  Edwards  thereupon  asked 
bim  why  he  drew  the  note  payable  to  him, 
when  there  never  had  been  any  dealings  be- 
tween them.  Mr.  Wright  sulh,  that  the  de- 
fendant Kinnersley  owned  at  that  time 
that  there  never  had  been  any  dealings 
between  them,  and  likewise  that  he  did  not 
know  Mr.  Edwards,  nor  had,  to  the  best  of  his 
knowledge,  ever  seen  him  till  then  before  sir 
Richard.  But  he  said,  that  the  reason  of  his 
doing  it  was  this :  that  he  was  indebted  to  the 
other  defendant  Hales  in  a  sum  of  such  an 
amount  and  more ;  and  that  Hales  desired  him, 
the  defendant  Kinnersley,  to  write  him  a  pro- 
miffsory  note  for  that  sum ;  that  he  asked  Mr. 
Hales  whom  he  should  make  the  note  payable 
to,  and  Mr.  Hales  said  to  Samuel  Edwards, 
esq.  and  that  accordingly  he  wrote  the  note  in 
that  manner  that  it  now  appears  in  to  you  upon 
the  request  of  Mr.  Hales.  Mr.  Wright  tells 
yoo,  that  at  that  time  he  had  heard  what  had 

Sast  relating  to  the  discourse  with  Bird ;  and 
e  told  him,  Why  you  have  expressed  your- 
ielf  as  if  you  was  a  ruined  and  undone  man  ; 
why  did  you  say  that,  if  Mr.  Hales  requested 
your  writing  him  a  note  for  such  a  sum  as 
1,260/.  ?  Upon  this,  one  Mitford  said  to  Mr. 
Kinnersley,  You  shall  not  go  on  to  declare 
yourself  any  further,  you  may  do  yourself  an 
injury.  This  is  made  use  of  as  a  circumstance 
by  the  kin^r's  counsel,  that  Mr.  Kinnersley  was 
going  to  explain  himself  further  if  he  had  not 
been  prevented  by  his  friend  or  solicitor,  who 
knew  the  consequence  of  a  confession  of  this 
nature.*  Mr.  Wright  tells  you,  that  at  this 
time  when  Mr.  Bird  was  examined,  and  said 
that  he  had  not  at  that  time  shewed  the  note  to 
Kinnersley,  when  he  said,  that  how  it  came  to 
be  indorsed  by  Mr.  Edwards  he  could  not  tell. 
Mr.  Edwards  hereupon  asked  him  whether  he 
knew  of  this  indorsement  before  Mr.  Bird 
shewed  him  the  note  P  That  he  answered  that 
he  did,  but  that  how  it  came  there  he  could  not 
net  tell.  So  that  that  is  the  substance  of  his 
confession  in  that  respect,  that  he  did  know  of 
it,  though  he  saiil  he  knew  not  how  it  came 
there.  Sir  Richard  Hopkins  likewise  was 
called  to  give  an  account  of  what  passed  before 
him:  hesaith  that  he  took  minutes  of  what 
passed  ;  that  it  was  in  the  latter  end  of  Sep- 
tember that  be  was  brought  before  him  charged 
with  forgery  of  two  notes,  this  of  l,2(jO/.  and 
another  of  1,600/. ;  that  as  to  this  note,  it 
seemed  to  him  an  altered  note,  which  wan  the 
occasion  of  his  more  strict  examination  of  the 
matter.  He  saith,  that  he  examined  Mr.  Bird, 
who  advanced  this  money,  who  said  that  before 
he  bad  shewn  this  note  to  Mr.  SJnnersley, 
when  he  had  only  told  him  that  he  had  a  note 
•f  liif  himd  ItiX  with  him  for  a  seciirityi  he 


answered,  I  know  that  yoa  have:  it 

1,S60/.  payable  in  three  months  to  fe^ 
Edwards,  esq.  or  his  ordefy  and  b  indor  ■ 
Samuel  Edvnurds.  Sir  Richard  hereapoi^B 
Mr.  Edwards  if  he  had  had  any  dcahnc-: 
Mr.  Kinnersley  ?  Who  said  that  ha  h^ 
Kinnersley  also  said  the  same,  but  said  ^  I 
drew  this  note  payable  to  Mr.  Edwards  ^ 
request  of  the  other  defendant  Hales,  ti^  ^ 
he  was  indebted  in' that  sum,  and  warm 
that  he  did  not  know  Mr.  Edwards,  nor  ^ 
best  of  his  knowledge  had  ever  seen  hint  b^ 
that  time.  He  saith,  that  upon  his  obse^ 
that  it  was  very  strange  that  he  should  ^ 
such  a  note  payable  to  a  person  with  wbo^ 
owned  that  be  had  no  dealings,  and  who 
an  ntter  stranger  to  him,  Kinnersley  wug^ 
further  to  open  his  mind,  but  one  wSs^ 
stopt  and  prevented  bim  from  going 
Richard  Davis,  who  is  the  constable  that  '> 
prehended  him,  was  next  called  to  give  an  i 
count  of  what  passed  when  the  warrant  «i 
issued  out,  and  given  him  to  be  executed.  1 
tells  you,  that  because  Mr.  SJnnenley  livi 
out  of  the  city,  he  went  to  a  publk:  has 
within  the  jurisdiction  of  the  city,  and  scnl 
porter  to  desire  to  speak  with  uim ;  but  i 
ceived  answer  that  he  was  not  in  town.  I 
enquired  when  he  would  be  in  town,  a 
went  himself  and  made  a  pretence  of  a  0M| 
wanting  to  be  married.  At  first  came  i 
the  daughter,  and  tlien  the  mother,  wh 
he  acquaint^  with  his  business:  at  6 
they  seemed  to  say  that  he  was  not  at  boB 
or  did  not  readily  say  where  he  was;  I 
after  that  he  had  given  an  account  of  I 
business,  he  was  carried  into  the  parioi 
and  then  Mr.  Kinnersley  came  to  him.  i 
told  him  the  business  of  the  marriage :  t^  < 
fendant  thereupon  asked  him  several  queatKN 
and,  among  the  rest,  how  old  the  lady  to 
married  was?  This  is  necessary  to  be  mi 
tioned,  because  they  have  insisted  upon  it  i 
proof  of  his  honesty,  that  he  asked  whcti 
she  was  of  aj^fe  or  not  ?  And  being  Udd  t 
she  was  not,  then  asked  whether  there  waso 
sent  of  relations  or  not  ?  If  (said  he)  there 
not,  I  will  not  be  concerned  m  a  thing  of  t 
nature  for  100/.  He  was  told  that  the  bi 
tlier  was  with  her  at  the  Magpye  tovem,  i 
asked  to  go  thither  for  satisfaction,  but  wo 
not  go.  Upon  this  the  constable  saith,  that 
went  away,  and  made  it  liis  business  to  wa 
and  see  when  Mr.  Kinnersley  came  out. 
an  hour  or  two  he  came  out,  he  dogged  him 
theI\1inories,  then  when  he  was  come  wi 
in  Aldgate,  he  told  him  that  he  had  a  warr 
against  him  for  forg^ery  of  a  note  of  ],3^ 
lie  then  desired  him  to  go  into  a  house  w 
him,  where  he  asked  to  sec  the  warrant :  Ui 
seeing  it,  he  said,  that  if  the  gentleman  I 
sent  for  him  he  should  readily  have  come 
bim.  Being  asked  why  he  denied  himsc 
He  anstrered,  that  be  was  afraid  of  being  > 
rested  for  ilebt,  and  that  Vas  the  reason  of 
denying  himself  when  the  constable  caino 
enquire  for  him.    lie  then  owned  that  the  A 


tt  f  krf  wilii%  i   but  jud  that  he 
')m  the  ndorMmciit  came  thert. 
vilhvhiiwas  nid  by  the  coonael, 
ly  Ai  ■iiiMiii,  €90ooeniiiig  what 
Ub  bmi  hie  ezamination  bcfoie 
Bipkiiii,  aod  to  Mr.  Bird  at  hia 
vbn  he  came  to  him.    Thia 
at  ta  the  fact     The  counsel 
go  on  and  aaj,  that  there 
frinM  eonrespondence  carried  on 
tva  deftnoantay  which  they  in- 
■lawiancii  to  make  it  likely  that 
krHB.    They  called  to  this,  first, 
I  Bfebi  who  aaith,  that  both  the  de- 
wilSBMt  froqnantly  at  hia  house ; 
" '  I  fnmntly  came  there  early  in 
waoid  aometimea  walk  about  a 
liae,  would  ask  aometimes  if  the 
WbRothera  witboot  naming  him, 
bfw  whom  be  meant,  baring  fre- 
dieai  together ;  that  some  time 
came  in,  Halea  sitting  by 
m  go  by  and  went  to  him ; 
Eiaaersley   came   in   and   went 
eite-room  into  a  back  room,  and 
Mlow  afier  him,  and  they  would 
tligiether;    Kinnersler  sometimes 
Rrt  at  one  door,  and  Hales  imme- 
artat  the  other ;  that  this  contioned 
•  OMMtb  or  three  weeks  beibre  Mr. 
Mcbeosion;  that  onetime  particn- 
hlaDerriey  paaaed  by  and  went  down 
sad  Ifr.  Halea  aeeing  him,  rose 
■Mtaot  after  him  ;  this,  he  saith,  was 
MSth  beibre  the  defendant  Halea  was 
ifi  He  aaith,  that  they  seldom  sat 
ifte  aablie  room,  bat  went  into  a  pri- 
Jobn  Brooks  was  next  called,  who 
Im  keeps  a  coffee- boose  io  Dnwn- 
yHii  Westminster.    He  said,  that  Mr. 
gwfcy  osed  to  come  someth&ca  to    his 
jPhsK,  send  for  a  porter,  and  git e  him  a 
flNr  Mr.  Hales,  who  hath  come  to  him, 
Hhf  htte  gone  into  a  prJTate  part  of  the 
Mm  there  they  hare  staid  fbr  three  or 
W^^t^  to^ber ;  that  it  bein?  in  the  eren- 
n  hitfa  thought  them  in  the  dark,  and 
Mike  serf  ant  why  a  candle  was  not  car- 
MiaB?    Who  hath  answered,  that  he  had 
Mthcm  one,  bnt  they  refused  it,  not  car- 
Ibleioterropted ;  that  they  met  thus  about 
mm  foor  times  in  a  month,  a  little  while 
plHr.  Hales  was  apprehended .    M  r.  Jane- 
1^  was  called,  who  saith,  that  he  hath 
Mk  two  defendants  aereral  times  retire  up 
bl^|Mlier  at  hia  coffee-house.    This,  gen- 
n,B  relied  upon,  and  given  in  evidence, 
ke  that  there  waa  a  correspondence  be- 
■  Am  about  some  affairs  not  so  proper  to 
iMSfsd  in  public.    This  is  the  substance 
b  evidence  on  the  side  of  the  prosecution : 
Ikeesunsel  for  the  king  tell  you,  that  as  to 
^  sf  this  nature,  they  must  be  done  in  a 
'prirate  way  in  order  to  prevent  a  disco- 
"f  it  caunot  be  expected  that  they  would 
pmns  to  eee  aoch  a  thing  done ;  that  the 
evidence,  therefore,  that  can  be  given  is 


Ju  D.  17». 


[£58 


dremnilaaee.     Well,  gentlemen,  the  defen* 
danu  come  upon  their  defence :  they  appear 
by  different  counael,  and  make  a  separate  de- 
fienoe.     The  counsel  on  the  behalf  of  the  do* 
fendant  Halea  insist  that  there  waa  a  debt  du« 
from  Kinnersley  to  Hales,  for  which  this  not* 
was  given  ;  that  this  doth  appear  from  the  ae* 
veral   declarationa  made  by  Mr.  Kinnersley 
from  time  to  time.    They  rely  upon  this  ai 
evidence  of  such  a  debt  for  money  ailvanced  Io 
him,  and  that  this  note  was  given  by  the  de- 
fendant Kini^ersley  for  such  a  debt.    Thcv  tall 
you  that-Mr.  Halea  being  a  bankrupt,  and  there- 
lore  it  not  being  firoper  to  have  such  a  note  in 
hia  own  name,  because  it  would  be  liable  to  bo 
claimed  by  the  asaigneea  in  the  commission  of 
bankruptcy  against  him,  that  therefore  it  wan 
proper  to  make  oae  of  the  name  of  another  per- 
aon  ;  that  Mr.  Edwarda  waa  never  affected  or 
injured  hereby ;  that  part  of  the  monejr  hath 
been  paid,  and  if  they  had  had  a  little  patience, 
as  4001.  waa  paid,  ao  the  rest  would  have  beea 
paid.    And  tbongh  they  admit  that  the  mak- 
mg  of  such  a  note  in  toe  name  of  another  to 
advance  credit  without  hia  leave  was  crimuwl, 
yet  it  did  not,  they  aay,  really  affect  or  injaro 
him.    And  then  to  shew  that  there  waa  a  reo« 
son  or  foundation  for  the  giving  of  this  note^ 
they  said  that  they  wonld  call  witness  that 
there  waa  an  account  stated,  upon  which  thia 
money  appeared  to  lie  due.    They  called  Ro- 
bert Burkit  to  it :  bnt  he  saiih  that  he  knoweth 
of  no  auch  account,  it  is  all  imagination  ;  thai 
his  name  was  made  use  of  without  his  know- 
ledge ;  that  he  knew  nothing  of  any  money 
ever  due  between  them :  so  that  it  w  plaui. 
that  that  witness  is  lost  in  tlie  ezamination  ao 
to  any  benefit  to  them.  They  said  tliat  thev  hail 
ao'rther  witness  who  happened  not  to  lie  here : 
this  is  the  substance  of  the  defence  of  the  de- 
fendant Halea.    Kmnersley  then  comes  ou  hia 
defence.     His  counsel  insist  that  he  is  not  evi- 
denced to  be  cooeemed  and  knowing  of  tbio 
forgery ;  that  as  this  is  a  crime  of  a  very  hein- 
ous nature,  and  deserves  the  greatest  punuh- 
ment,  ao  it  is  necewarv  that  tlie  dearest  proof 
should  be  given  you  before  you  convict  him. 
Tbey  say  that  bis  character  likewise  rMpiirei 
stronger  evidence  than  oilier* ;  that  his  cradit 
is  more  concerned  than  othem,  because  the 
very  ezerciae  of  his  function  deptfmls  up<Hi  hia 
credit,  witboot  which  lie  will  be  ol  imi  um;  in 
the  parish  wh<rr«  be  doth  or  aiay  miiiisti:r.   Ami 
tbey  say,  that  it  appears  by  tlie  evidcnci^  <hi 
the  side  of  the  prosecution,  that  Ih'  i«  ti**y 
careful  iothe  d»setiar|^«  «if  \\\%  ftiucii»ii.  tilii^^h 
they  insist  on  from  his  refusal  to  \i^  <  iiuo"!*!**' 
in  a  marriage  without  a  lioeooe  and  «<'(«•<'" ^  ^ 
friendH,  it  Mng  contrary  to  actn  «i  p«ili«"«»«* 
and  to  the  canons  of  the  cburrh.  nud  ibvi  tiiej 
«uppnne  him  as  cautious  in  «iih»t  lb*" J?*-   ^'^.^ 
say,  timt  the  thing  itself    ik  ii»>i«l*  <*"^   '^^ 
it  IS  an  innocent  and  harrrilr«k  thrna ;  ">*-  ^ 
iierson  is  hurt  by  auoti«<r'«  «if  •»•"!?''  y* 
liim  a  sum  of  money  by  aof-li  «  ii«4r :  >'• '   ^^ 

pemoii,  indeed,  who  r<»«»  *«••'*•  ■  ^^^  *  ***** 
to  an  action  for  the  iftottvy,  but  that  than  «^  •• 


<»■ 


259J 


3  GEORGE  II.         Trial  of  Wm.  Hales  and  T.  Kxnnerde^^        [ 


injury  done  to  the  person  to  whom  it  is  marie 
payable ;  that  therefore  as  to  Mr.  Kinnersle>  's 
subscnbinin'  a  note  fur  so  much  money  payable 
to  Samuel  Edwards,  esq.  especially  when  it 
was  done  iiprm  the  recjuest  of  the  defendant 
Hales,  upon  account  of  a  debt  which  was  due 
from  bini  to  Hales,  and  for  the  oon?enience  of 
Hales,  it  was  an  innocent  tliinfi^ ;  that  Kinners- 
ley  was  to  pay  Hales  so  much  money,  and 
riales  himself  desired  a  note  for  it  in  this  name. 
They  say  that  Kinnersley  might  he  induced  to 
do  this  from  the  credit  and  character  of  Hales, 
and  from  their  former  acquaintance ;  that  he 
was  the  minister  in  his  parish  when  the 
partnership   Was   between    him  and  sir  Ste- 

{ibcn  Evance;  that  notwithstandinfir  his  mis- 
ortunes  since  that  finit  acquaintance,  it  is 
plain  that  he  hath  been  corres|)onded  with 
by  persons  of  credit,  therefore  there  can  be 
DO  reflection  on  that  head  on  Mr.  Kinners- 
ley. And  they  say,  that  as  there  was  no- 
thmjf  culpable  in  p^ivin^  of  the  note,  so  nothing 
amiss  liaih  happened  thereu|ion ;  that  if  Mr. 
Hales  hath  dono  any  thing  amiss,  it  does  not 
affect  Mr.  Kinnc  rsley .  Though  they  raise  Mr. 
Hales's  credit  at  first,  yet  atlerward  they  sinic 
it,  and  seem  to  throw  the  blame  upon  him. 
Tliev  plead  also,  that  there  is  no  evidence  that 
the  mdorsement  was  upon  the  note  when  it  was 
subscribeil  by  Mr.  Kinnersley.  If  it  was  after- 
wards (say  they)  indorsed  with  or  without 
authority  from  Mr.  Edwards,  it  will  not  affect 
Kinnersley,  except  there  be  express  proof  that 
he  did  it.  Thev  say  also,  that  there  is  no  proof 
of  any  franks  clelivered  to  Kinnersley  but  only 
to  Hales ;  that  he  bad  not  therefore  the  oppor- 
tunity that  Hales  might  have ;  that  therefore 
he  is  not  involved  in  that  circumstance  or  tiic 
inducement  hereto ;  that  I  lie  proof  or  evidence 
given  is  nothing  nofainst  him.  And  then  (say 
they)  to  what  purpose  bhnuld  the  note  be  con- 
trived to  be  inil(M8(^d  with  the  privity  of  Kinner- 
sley, when  he  hath  no  manner  of  benefit  thereby. 
Hales  having  received  the  money  ?  They  ask 
the  question  c\i\  honv^  and  thence  infer  that 
Kinnersley  could  n«)t  do  this.  And  they  insist 
upon  it  in  point  of  law,  that  the  writing  of  this 
note  can  be  no  fraud  in  him,  he  having  done 
what  renders  him  liable  to  an  action.  And  to 
shew  that  the  money  was  due  from  Kinnersley 
to  Hales,  they  have  tailed  several  witnesses  to 
shew  that  there  was  a  foundation  for  this  note. 
Mr.  Peter  Marsh  was  called  :  He  saith,  that 
about  ten  or  eleven  years  ago  he  brought  a 
bond  of  50/.  to  him  made  by  Mr.  Kinnersley 

Eayabletobim.  Mr.  Hales  told  him,  that  Mr. 
Linnersley  owed  him  this  money,  and  had 
ffiven  him  this  note  made  payable  to*  him,  which 
he  desirefl  him  therefore  to  get  for  him.  He 
knew  nothing  of  the  matter,  was  surprised  that 
liis  name  was  made  use  of,  and  so  returned  the 
bond  again.  This  is  insisted  upon,  gentlemen, 
to  shew  that  there  were  transactions  l>etwcen 
Kinnersley  and  Hales.  Now  wlietlier  this 
|imvea  a  debt  due  from  the  one  to  tbe  other,  or 
|iroTM  ao  extraordinary  method  of  taking  bonds 
IB  tht  ii|n«  of  pcffOM  whboai  thtir  ooiiitat, 


Tou  are  to  consider ;  especially  when  ^o«  i 
Know  that  if  this  bonit  had  been  put  in  mi 
Peter  Marsh,  he  would  have  been  liable  t 
cover  the  money.  Well,  then  William  Cn 
iK  next  called.  He  saiih,  that  he  reeeit 
Janeway's  coffee-house  about  60/.  a  debt 
was  due  from  Kinnersley  to  him.  He  reo 
it  of  the  defendant  Halei,  and  Kinner»ley 
there  with  him  at  that  time.  He  saith, 
Kinnersley  was  the  original  debtor  i^f 
money,  and  that  Hales  gave  him  his  note  i 
He  saith,  that  Kinnei-sley  had  borrowed  ol 
an  hundred  and  odd  pounds ;  that  he  bro 
another  gentleman  to  be  securitv  with  bii 
it ;  that  at  the  end  of  six  months  he  oouk 
get  his  money ;  ttiat  he  enquired  of  Kinne 
tor  it,  who  led  him  a  dance  fi-om  place  to  | 
after  him  for  a  considerable  time ;  that  a 
he  was  forced  to  sue  for  the  money  ;  auc 
covered  half  from  the  other  gentleman  ; 
he  then  prosecuted  Kinnersley  for  the  i 
that  then  Kinnersley  met  him  with  Mr.  I: 
at  some  tavern,  and  then  Hales  told  him 
he  was  to  receive  about  6  or  700/.  within  « 
three  months  time,  and  then  he  would  pay  I 
He  saith,  that  upon  that  offer  of  Hales  he 
a  note  of  Hales,  and  a  new  one  of  Kinnet 
for  the  money ;  and  that  in  February 
he  got  the  money  as  before- mentioned, 
received  it  at  Jaiieway's  coffee- liOU»e. 
he  saitli,  that  some  little  mutter  (about 
shillings  or  thereabouts)  was  due  for 
charges,  for  which  he  gave  him  his  i 
Hales  gave  his  note  for  the  nnyment  of  t 
of  Kinnersley 's,  a  debt  of  50f.,*and  he  gave 
reason  tor  it,  that  he  was  to  receive  withii 
months  about  0  or  700/.  for  him,  and  then 
he  could  venture  being  security  for  Kinner 
This  is  a  transaction  of  quite  another  na 
it  is  so  far  from  proving  a  debt  from  Kinne 
to  Hales,  that  it  rattier  proves  Hales  ind« 
,  and  becoming  security  for  the  other.  \ 
\  then  John  Wells  is  called.  He  saith,  tbi 
i  knoweth  not  of  any  money  due  from 
i  nerslcy  to  Hales,  but  that  Kinnersley  < 
:  him  100/. ;    tiiat  afterwardi  this    money 

•  |>aid  to  his  attorney,  by  whom  or  how  he  < 

•  not  tell.  Mr.  Simpson,  who  is  a  partner 
'  Mr.  Fowler,  is  then  asked  concerning 
'  borrowed  upon  some  lottery  tickets  of 
j  Fowler,  and  is  asked  concerning  this  mi 

how,  where,  and  by  whom  it  was  ilischar 

He  saith,  that  he  it  as  not  at  tbe  shop 

knoweth  not  by  whom  and  hotv  it  was 

charged.     Mr.  Kinnersley,  upon  this,  b| 

himself  to  one  of  the  !;eiiileiiien  of  the  , 

>and  interrogates  him  how  this  nmney  was 

j  Mr.  Fowler  was  liereiiptm  sworn  tu  give 

,  dence.    Upon  his  oath,  he  saiili,  that  ha  i 

knew  of  any  transaction  in  the  name  of  H 

that  he  never  saw  hini  at  his  shop.     That 

Kinnersley  there  was  a  transactioo  uf  ro 

borrowed  on  lottery  tickets,  but  he  kno 

nothing  of  E^ules's  being  conccrnetl.     Aa 

person  is  examined  whether  he  ever  g; 

<note  on  Mr.  Hales's  accouiii,  or  at  bis  re 

paid  any  mouay  ?    He  saith,  that  be  iie?« 


JiiT  a  Misdemeanor. 

lowctfi  thtt  iny  other  did.  They  tell 
»,  that  tbe  witncMeii  for  the  prosecution 
im  gnat  netsure  proved  the  denial  oi' 
ioDcrslej  of  bisknowinH^  of  the  indorse- 

bal  the?  call  tbemseWes  for  further 
itMenoeorit.  They  cail  Mr.  John  Hayes, 
ilh  Ibat  he  was  present  at  tbe  examination 
ijHieralev  before  sir  Richard  Hopkins ; 
ibMrime  the  defendant  Kinnersley  owned 
ijStf  the  body  of  tbe  mite,  but  at  the 
iMt  said,  that  how  tbe  indorsement  came 
besald  not  tel].  He  tells  you  tliat  the 
I  ihac  was  g^Ten  to  tbe  defendant  Kin- 
',  was  after  this  declaration  made  by 
fcaithen  there  was  an  admonition  that  he 
he  eaotious  in  the  answers  that  be  japiTe. 
drew  Grants  likewise  was  present  at  that 
atioo.  He  saith,  that  that  was  all  Ibat 
illhat  time,  and  that  he  was  notstoppeil 
Mitibfd,  but  onlv  a  reasonahle  caution 
im  that  he  should  not  betoo  much  in  an 
•r  the  like.  This  is  the  substance  of 
made  by  the  counsel  for  both  tbe 
It  is  the  right  of  the  counsel  for 
f  to  reply.  They  say,  that  there  bath 
I  avidence  of  transactions  between  Kin- 

aod  Hales  to  tbe  amount  of  any  such 
I  the  note  is  for ;  that  if  the  note  was 
rith  a  design  to  ^efraud,  both  mast  be 
r  guilty ;  and  that  it  is  a  very  eztraordi- 
mg  that  this  note  should  be  written  by 
mmiey  as  a  promissory  note/or  such  a 
yable  to  Samuel  Edwards,  esq.  when  it 
itappear,  on  the  defendant's  part,  that 
rat  any  correspondence  between  £d- 
■d  Kinncrsley,'and  on  their  side  it  bath 
isfcd  that  there  was  no  such  correspon- 
.  that  it  was  very  extraordinary  if  this 
IB  ffiTeti  for  a  debt  due,  that  it  should  lie 
i  the  name  of  one  with  whom  they  had 
ifY-dealingswhatsoeTer,  and  of  er  whom 
aid  not  be  supposed  to  have  any  power  ; 
is  therefore  seems  to  be  only  to  give  a 
>  the  note ;  that  it  could  not  be  of  any  use 
ever  without  having  tbe  name  of  some 
nf  drcumstaoce  and  condition  to  it  who 
le  obligefl  to  pay  the  note ;  thut  this  note 
ive  been  thrown  upon  Mr.  Edwards,  ap  • 
bey  say)  from  the  declaration  of  Kin- 
,  that  he  was  an  undone  man.  If  then 
if  any  use  to  borrow  money  upon  or  in 
•er  way,  it  must  be  from  the  substance  of 
iwards,  and  not  from  the  poverty  and 
icy  of  Kinnersley.  They  insist  upon 
cumstance,  and  the  declaration  of  Kin- 
,  that  he  knew  of  that  indorsement, 
Ikiw  it  came  there,  be  said  that  he  knew 
iod  further  they  say,  that  as  the  name 
'•  Edwards's  own  baud-writing,  if  that 
nd  *  ffree'  was  wrote  unon  tbe  paper,  it 
»  before  the  writing  or  the  hofly  of  the 
It  caanot  be  imagined  that  the  words 
et  there  before.  It  cannot  be  supposed 
r.  Edwards  would  set  his  name  to  the 
ftce,'  or  to  any  other  woid  on  the  back 
Me  pffomising  the  payment  of  1,260/., 
to  him  or  his  order.    They 


A.  D.  1729.  [262 

insist,  therefore,  that  this  name  and  the  word 
*•  ffree'  were  upon  the  pa|ier  before  the  note  was 
wrote,  and  that  this  is  a  strong  and  reasonable 
evideuce  that  Kinnersley  must  be  privy  lo  the 
name  of  Edwanis,  and  tbe  indorsement  at  that 
time.  After  that,  Mr.  Kinnersley  desired  to  be 
heard,  and  he  was  indulgetl :  but  as  to  thai  you 
have  been  informed,  that  in  indictments  for 
misdemeanours,  whatever  the  defendant  saith 
for  himself,  it  will  have  no  further  validity  than 
as  the  counsel  insist,  and  evidence  is  brought 
for  him.  Tbe  cireumslance,  therefore,  is  very 
different  from  what  is  allowed  when  persons 
are  pn>secuted  in  capital  cases.  However,  you 
have  heard  how  he  bath  declared  in  the  most 
solemn  manner  his  innocence.  You  are  to  con- 
si<ler  whether  that  is  of  any  validity,  unless 
there  was  evidence  of  such  a  debt  due  from  the 
defendant  Kinnersley  to  Hales  the  other  de- 
fendanty  whether  you  will  take  it  upon  his 
word.  Tilts  being  the  evidence  on  both  sides, 
tbe  first  question  is,  whether  tbe  indorsement  is 
forged,  because  till  you  determine  that  it  is  a 
forged  indorsement,  there  can  be  no  prosecu- 
tion for  tbe  publication  of  it.  If  it  be  a  true 
indorsement,  no  person  can  be  guilty  of  the 
publication,  mncn  less  can  Mr.  Kinnersley, 
who  did  not  deliver  the  note:  that  therefore 
lieth  upon  the  defence  of  Mr.  Hales,  which  is 
not  made  but  by  the  defence  of  Kinnersley. 
You  are  to  consider  then  the  opjiortunity  that 
tlie  defendant  might  take  hold  ot  from  the  re- 
ceiving of  franks  for  several  years  from  Mr. 
Edwanis ;  and  you  will  consider  whether  there 
is  any  clear  proof,  or  so  much  as  the  colour  of 
it,  that  Mr.  Edwanis  was  privy  to  an  indornc- 
ment  of  this  nature,  or  there  was  any  occasion 
for  such  an  indorsement.  If  no  such  money 
was  indeed  due,  to  what  purpose  should  the 
note  be  indorsed  ?  Upon  the  best  observations 
that  I  can  make,  1  see  not  any  evideuce  to 
raise  a  reasonable  presumption  Ironi,  that  this 
was  a  fair  and  justifiable  indorst-ment.  if  it 
was  not  an  imposition  on  Mr.  Edwards,  because 
it  makes  him  liable  as  an  intlor^<er  for  the  sum 
mentioned  in  the  note,  if  you  should  find  thaty 
yet  you  are  to  conttider  whether  it  is  fhir  to 
make  use  of  another's  name  in  a  note ;  for  Mr. 
Kinnersley,  who  by  his  own  confessiiin  is  a 
poor,  undone  man,  and  whose  living  is  under  a 
sequestration,  to  make  a  note  indorsed,  by  an- 
other iierson  who  can  never  be  reimbursed  by 
this  |>erson  who  subscribed  the  note,  it  i^ta  very 
extraordinary  way  ;  though  they  say  that  it  is 
an  innocent  way  of  raising  money,  for  a  |)er- 
son  in  custody,  or  liable  to  it,  to  make  use  of 
the  name  of  a  substantial  person  in  such  a  iiote^ 
\t  hose  credit  must  be  at  stake  for  the  money. 
And  then  as  to  the  nature  of  the  note :  if  it  was 
only  a  promiss(»ry  note  tor  so  much  money 
payable  to  Samuel  Edwards,  esq.  it  was  not  of 
such  consequeuce,  tor  then  he  was  not  liable  : 
but  he  is  liable  to  the  payment  «inly  upon  the 
iiuiorseinent  of  such  a  nuie.  Why  ihen,  gen- 
tlemen, you  are  to  consider,  wlu'ther  thi<i  uote, 
when  Mr.  Kinnersley  hud  wrote  it,  could  tie  of 
any  use  in  the  world  unlcs»  it  w&a  iadorsed  af« 


ies] 


$  GEORGE  IL        Trial  of  Wnu  Hates  and  Tn  KimerJey. 


tsrwards.    Whr  then  this  note  is  either  a  pre- 
paration to  obtain  "Mr.  Edwanls's  roluntary  in- 
doraement  for  a  secarity,  or  an  imposition  upon 
bim.     Hath  an^  evidence  been  prod  need  to 
shew  a  probabihty  thct  Mr.  Edwards  would 
gire  him  that  liberty  to  transfer  his  own  insuffi- 
ciency and  poverty  upon  him,  and  make  him 
liable  to  Mr.  Edwards,  which  can  have  no  effect 
but  by  an  indorsement ;  doth  not  Mr.  Kinners- 
ley  put  it  into  the  power  of  Hales  to  negociate 
this  note  ?  Therefore  I  mnst  inform  you,  if  two 
persons  contrive  together  to  draw  such  a  note, 
And  make  nse  of  it,  both  persons  concerned  in 
the  transaction,  in  my  opmion,  will  be  guilty. 
Forgery  is  an  entire  ract.    Though  one  person 
doth  one  part,  and  another  the  other,  -both  are 
^uallv  guilty.*    Gentlemen,  it  is  material,  as 
liath  been  observed,  to  consider  when  this  in- 
dorsement was  made ;  and  if  it  was  a  forged  in  - 
dor8ement,you  ^vill  consider  when  it  will  appear 
to  have  been  indorsed.  You  have  been  truly  told 
that  this  can  be  only  known  by  circumstances : 
therefore  you  are  to  consider,  whether  the  name 
uf  Samuel  Edwards  can  be  supposed  to  be  set 
tliere  after  the  note  was  wrote.  Well  then,  what 
is  the  proper  and  natural  way  of  understanding 
this  transaction  ?    If  there  be  the   name  of 
a  person  on  any  paper,  where  there  is  room  for 
making  an  alteration,  what  is  natural  ?    Why, 
to  transact  on  the  other  aide  what  is  necessary 
to  supplir  and  make  that  complete,  without 
vhich   the   name  would  be  to  no  purpose. 
Therefore,  that  is  a  material  consideration  $  if 
it  ia  impossible  that  the  name  could  be  wrote 
mAer  the  making  of  the  note,  whether  that  be 
not  a  reasonable  presumption  that  be  saw  this 
indorsement  when  he  wrote  this  note.    Sup- 
pose the  words  only  *  ffree  Samuel  Edwards,' 
It  was  not  proper  to  write  this  note  on  the  back 
of  it.     If  this  indorsement  was  made  without 
bis  privity,  how  came  he  to  know  of  it  when 
be  came  to  Mr.  Bird  ?    And  upon  Mr.  Bird's 
telling  him  that  he  had  a  note  of  his  left  with 
bim,    immediately  answered,  **  1  know  that 
you  have ;  it  is  fur  so  much,  payable  in  three 
months  to  Mr.  Edwards,  but  how  it  came  in- 
dorsed bv  him  I  know  not ;"  when  Mr.  Bird 
iwearstbat  he  had  not  then  acquainted  him 
with  the  indorsement,  nor  showed  him  the  note 
mt  that  time.    No  evidence  hath  been  produced 
to  shew  how  be  came  to  know  that  it  was  in- 
dorsed.    He  declared,  indeed,  that  he  knew 
not  how  it  came  to  be  indorsed :  bnt  you  are  to 
consider,  whether  that  part  wherem  he  de- 
clares biy  knowledge  is  to  be  regarded,  or  what 
be  declares  he  knows  not  of,    A  declaration  of 
this  nature  will  be  taken  most  strongly  against 

*  See  Eitt'0  Pleas  of  the  Crown,  ch.  19, 
•.51. 


him.  Consider,  therefore,  whether  this 
part  of  his  declaratkm  be  sufficient  to  disc 
nim.  If  he  knew  that  it  was  indorsee 
should  have  some  evidence  upon  what  ac 
it  was.  As  to  the  rest,  as  to  the  eharact< 
coat,  or  Uie  like,  you  are  to  try  bim  npc 
same  law  with  Hales.  I  know  not  wh 
habit  he  wears  ahould  exempt  him  Iroi 
common  rules  of  proof.  As  to  tbo  port 
circumstance  of  his  usefulness  depend! 
his  credit,  that  is  left  to  yon.  But  the 
law  is  made  for  one  that  is  for  aaetber : 
are  therefore  to  consider  of  it.  If  this  be 
indorsement  you  must  acquit  both.  I 
are  satisfied  that  it  is  not,  but  the  indoro 
is  a  forged  indorsement,  whether  eithe 
which  of  the  defendants  seems  to  he  |^ 
You  are  to  consider  tbo  nature  and  di 
stances  of  the  transaction,  and  whether 
appears  any  thing  to  distinguish  the  one 
the  other,  and  accordingly  give  your  v 
against  the  one  or  the  other.  If  you  dei 
the  note  will  be  given  to  you. 

Jury.  My  lord,  if  your  lordship  pleas 
will  take  the  note  up  with  us. 

Kinnerdev.  I  desire  to  be  heard  — ^- 

L.  C.  B.  Not  in  case  of  a  misderoeanc 
know  not  any  instance  in  whioh  it  hath 
allowed. 

Kinnersley.  1  beg  leave,  my  lord.  I 
the  Lord  to  witness  — — 

L,  C.  B.  All  I  can  say  is,  if  you  b) 
mind  to  aver  or  affirm  any  thing,  the  < 
would  rather  be  irregular  than  abridge  j 
any  thinif. 

Sen.  Whituker.  My  lord,  it  never  wi 
lowed;  after  your  lordship  baa  summc 
the  evidence,  and  the  jory  gating  out : 
strange  Mr.  Kinnersley  will  behave  so. 

Att.  Gen,    Is  it,  my  lord,  to  be  allowf* 

L.  C.  B.  The  gentlemen  have  insisted 
it.     You  cannot  be  heard. 

Kinnersley,  By  the  living  Ood,  1  kno^ 
thing  of  it ! 

CL  ofArr.  [Calling  over  the  Jury.] 
you  all  agreed  in  your  verdict  P 

Jurymen,  All. 

Clerk,  Who  shall  speak  for  yon  r 

Jurymen,  Our  foreman. 

Clerk,  How  say  you,  is  William  ! 
Guilty  of  the  misdemeanor  wherewith  he  i 
charged,  in  forging  an  indoraeroent  on  a 
missory  note  for  1,960/.  in  the  name  of  Si 
Edwards,  esq.  and  publishing  the  same  I 
ingitto  be  forged,  or  Not  Guilty  } 

Foreman,  Guihy. 

Clerk.  How  say  you,  is  Thomas  KhnM 
Guilty  of  the  satd'misdemeanour  wbeviwj 
stands  charged,  or  Not  Gnilty. 

Foremgn.  Gailty« 


Trid^fWmamHaki. 


A.D.  17C(k 


fj.  The  Trial  of  William  Hales,*  for  a  Misdemeanor,  in  ob- 
taining  from  Thomas  Bird  the  Sum  of  Seven  Hundred  and 
fifty  Pounds  by  false  Tokens^  &c. :  3  Geouge  H.  a.  d.  I729. 


Tbe  Jury  calM  orer  agaiD. 
te«Mi  OyEZ,  Oyez,   If  any  om  can 

I^DICTMCn'. 

Hales  ttands  indicted  bj  the  name 
Halea,  &c.  for  falsi?  and  deceitfully 
_  tba  ran  of  7502.  of  Tliomias  Bird  by 
^AhttDken,  m.  a  promiaaory  note,  in  these 
'  MIowiag: 

*<  Augtat  16, 1727. 

•  ^  I  proniae  to  pay  to  Samuel  Ed  ivards,  esq. 

Illiisider»  within  three  months  after  date, 

fcanof  twelve  hundred  and  sixty  pounds, 

•^■he  rceeif ed,         Thomas  Kinnersley." 

On  vhicfa  Qote  there  is  the  foIlowin|^  ind<ir8e- 


"hiy  pay  to  the  order  of  for  value 

Sahubl  Edwards." 


iif  great  damage  of  Samuel  Edwards,  esq. 
ku  To  ibia  indictoMnt  he  hath  pleaded  nut 

Wr.  Strange,  May  it  please  your  lordship, 

iiaia  indictment  against  the  prisoner  Wil- 

"  la  Bales  only .    It  seta  forth  that  be,  having 

IkbpBMessibn  a  certain  writing  purporting  to 

hi  promissory  note  made  in  the  name  of 

Ihiu  Kiouersley,  wherein  the  said  Thomas 

faniLy  is  supposed  to  promise  to  pay  the 

Mif  lfS60/.  to  Samuel  Edwards,  esq.  within 

te  nonths,  with  a  forged  indorsement  of 

Ir.  Edwards  on  that  note,  did,  in  March  last, 

AUj  sad  deceitfully  obtain  of  Mr.  Thomas 

>  Ini,  tbeaoni  of  7S0/.  by  that  false  token. 

K  islsid  to  be  contrary  to  the  statute  in  that 

ott  nade,  to  the  damage  of  8amuel  Edwards, 

M^  &e.  to  the  breach  of  his  majesty's  peace, 

^  to  the  ill  examph!  of  hia  majesty's  subjects 

■fta  ease  offending. 

Mt.  Gen.  My  lord,  this  is  an  indictment 
VMBst  Mr.  William  Hales,  for  obtaining  a  sttm 
^9tamey  by  the  false  token  of  this  note.  For 
ihwa  will  only  call  Mr.  Bird. 

Mr.  Bird  sworn. 

4ll.  Gen.  Mr.  Bird,  look  upon  the  note,  and 
fifSiii  account  who  brought  it  to  you,  and 
vbat  money  you  paid  upon  it  ? 

Bird.  Mr.  William  Hales  brought  it  to  me 
M  March  20th,  last. 

Att.  Gen.  What  did  be  say  ? 

Bird,  He  said,  that  at  the  request  of  a  gen- 
flnnan,  I  was  to  lend  him  760/.  upon  that  note. 

dtt.  Gen,  Did  he  produce  the  note? 

*  bsethe  preoadiDg  and  folbwing  Caaci. 


Bird.  Yea,  Sir,  I  had  it  then  of  him. 

Att.  Gen.  Waa  it  then  indorsed  as  it  is  now  f 

Bird,  Yes,  Sir,  in  the  manner  as  now. 

Att.  Gen,  How  much  money  did  you  d«* 
lirer  him  upon  ii?— Bird.  760/. 

L.  C  B.  Pengelljf.  Diil  you  deliver  it,  when 
he  delivered  you  ihis  note? 

Bird.  Yes,  my  lord. 

Att,  Gen.  Should  yon  have  let  him  bav# 
this  money  if  he  had  not  produced  tbia  uoteT 

Bird.  No,  Sir. 

Att.  Gen.  What  waa  it  paid  in? 

Bird   In  one  or  more  B^ok- notes. 

Seri.  Ej^re.  J  submit  tbia,  my  kwd :  they 
have  laid  ibis  indictment  but  singly  for  obtain* 
invr  money,  whereas  in  the  former  they  Iayt4 
doubly  for  obtaining  money,  or  other  valuable 
things.  It  lietli  therefore  upou  them  to  prove 
that  this  Mr.  Halea  did  receive  in  money. 
Though  1  know  that  generally  Bank-notes  are 
received  as  so  much  money,  yet  1  know  not 
that  according  to  law  they  are  reckoned  money. 
They  should  therefore  have  laid  it  for  money 
or  other  valuable  things,  it  bein^  two  Bank* 
notes,  and  not  money  :  and  in  tbia  manner,  I 
supftose,  in  case  of  a  tender  of  money,  it  is  not, 
as  I  apprehend,  thought  thai  a  tender  of  Bank- 
notes is  a  sufficient  plea  :  Uie  consequence  then 
is,  that  the  giving  of  760/.  and  the  giving  of 
surh  notes  is  not  tantamount.  They  ought  to 
indict  him  as  the  fact  really  was. 

Att.  Gen.  Do  you  know,  Mr.  Bird,  of  the 
receiving  of  this  money  ?  Did  he  complain  of 
his  not  receiving  of  this  money  ? 

Bird.  No,  sir. 

Serj.  Whitakcr.  Did  he  pay  buck  any  of  the 
money? — Hird.  Yes,  Sir,  400/. 

Serj.  Whitaker.  Was  it  U|»on  the  account  of 
those  HHnknote:^? — Bird.  Yes,  Sir. 

L.  C.  B.  Then  when  he  paid  you  bark  that 
money,  did  he  complain  that  he  had  not  re« 
ceived  it  ? — Bird.  No,  uiy  lord. 

Serj.  Eyre.  Fray,  Sir,  i*id  he  say  that  he  had 
received  it? — Bird.  Yes, Sir. 

L.  C.  B,  Mr.  Serjeant  Eyre,  I  supposa  you 
do  not  insist  upon  it  us  necessary  that  be  should 
receive  so  much  money  of  Mr.  Bird,  if  he 
received  tlie  produce  of  those  notes  it  was  suf- 
ficient. 

Serj.  Ej/rc.  My  lord,  I  apprehend  that  though 
he  dill  receive  the  money  from  the  Bank  for 
ihone  notes,  he  received  not  the  money  from 
the  hands  of  Mr.  Bird.  He  received,  indeed, 
what  I  should  have  taken  lor  money.  Es|M)- 
cially  as  the  act  of  parliament  hath  added,  *  or 
any  valuable  thing,'  as  je\tels  or  the  like.  I 
think  it  should  have  been  so  laid.  1  observo 
the  words  used  are,  *  by  colour  or  means  of  a 
fahio  tuikea.'    i  woukl  aak,  suppose  Mr.  Bird 


«67] 


S  GEORGE  If.  Trial  of  fTm.  HaUt  and  T.  KinnenUy,         [968 


bid  oTiterei]  him  to  receire  it  of  his  cashier,  or 
scut  llie  note  to  his  goldsmilh,  whose  pBymcut 
would  it  hare  been  i  Suppoue  he  had  sent  him 
tu  llie  Bunk  to  rec«vc  that  bioiipy  before  lie  de- 
lli«red  up  tlie  note,  certainr}'  he  had  obtiiaed 
the  moony  by  colour  or  means  of  that  note. 

Hy  lord,  I  admit  that  if  it  had 

hcen  paid  by  his  servant  or  b^  his  cashier  upoD 
a  Dole  drawD  upon  him  for  it,  I  lake  it  that  it 
Kiighl  have  leen  laid  either  way. 

^rj.  Whilaktr.  The  Bauk  in  that  respect 
are  but  caabiera  for  the  geutlemep  that  haie 
Uieir  notes. 

!4erj.  £yre.  The  oibec  indictment  kid  it 
doablv. 

Judge  Hi^tiuUt.  Though  they  mi^t  do  that 
by  wav  of  caiitios,  yet  it  might  hare  heen  laid 
ibe  other  way  as  ibis  is. 

L.  C.  B.  Gentlemen  of  the  Jury,  yon  are  to 
COD  aider  whether  tbe  indorsement  on  tbii  note 
was  a  forged  indorcement ;  for  if  it  was  uot 
forged,  tbe  defendant  cannot  be  said  to  obtain 
Ibe  money  by  a  false  token.  And  further  you 
are  to  consider,  aa  he  obtained  this  of  Hr. 
Binl  by  thii  false  token,  whether  it  ever  came 


to  his  hands  Or  not.  You  are  to  coiuiiler  apos 
ibe  erideuce  that  be  never  cumulsiued  that  ha 
had  not  received  the  money  fur  iboie  bills,  but, 
on  the  contrary,  paid  back  400i.,  jiart  of  iba 
money,  wbelber  he  would  have  paid  it  if  ha 
had  not  received  tlicnianey.  Therefore,  if  yoa 
apprehend  that  indorsement  of  the  note  was  not 
a  forged  indorsement,  or  that  tbe  money  was 
not  |Mid,  you  are  to  acquit  bim.  But  if  yon 
Judge  that'tbc  [ndnracmont  upon  the  uule  wu 
forged,  and  the  money  Jiaid,  whtlber  it  was 
paid  hv  Mr.  Bird  in  ninney,  or  in  billa  um 
whicb  be  aflerwanis  received  money,  I  Ibiok 
that  thai  makes  no  difference. 

Jury  called  over. 
Clerk.    Are  von  all  agreed  in  yonr  TCrfidf 


Llerk.  Are  \i 
Tury.  Agreed. 
CUrk.  Who  sL 


CUrk.  Who  shall  speak  for  you  T 

Jury.  Our  Foreman. 

Cltrk.  How  aay  you,  la  M'illiam  Haisi 
G  uilty  of  tbe  misdemeanour  whereof  he  standi 
indicted  in  obtainiutf  a  sum  of  ntoney  by  thil 
fidK  token,  or  Not  Guilty  r 

Fertntan.     Guilty. 


476.  Tlie  Trial  of  William  Hales  and  Thomas  Kinneuslet* 
Clerk,  for  a  Misdemeanor,  for  fraudulently  forging  a  Pro- 
missory Note,  &c.  in  the  Name  of  Samuel  Edwards,  esq.' 
for  Sixteen  Hundred  and  Fifty  Pounds,  and  publishing  the 
said  Note,  knowing  the  same  to  be  forged :  3  George  H. 
A.D.  1729. 


Jury  called  and  atrom  over  again. 
Clerk.  OyEZ  !    Oyez  !  If  any  man  can 
joform,  Sec, 

Ikdicthext. 
Gentlemen  of  the  jury,  William  Hales  and 
Tiiomas  Kinnenlry  stand  imlicled  by  the 
names,  &c.  for  frauJuleolly  forgini;  anoieora 
writing,  purporting  to  bea  prumiisory  note,  on 
the  Snd  of  March,  in  ihe  first  year  of  bis  ma. 
jelly's  reign,  in  ibe  words  following: 

"  I  promise  lo  pay  to  Mr.  Thomas  Kinners- 
ley,  or  his  order,  within  six  monlbs  alter  dale, 
(he  lum  of  sixteen  hundred  and  GDy  pounds, 
for  ibe  value  received,        Simuel  EnWABOs." 
and  Icnawingly  and  wittingly  publiahing  of  this 
aaa  tme  writiog,  knowing  it  to  be  to  forged 
and  couaterfeilM. 
Hr.  Straoife.    May  it  please  jonr  lordihip, 
,   and  ynu  genllemen  of  Ibe  jury,  this  is  an  in- 
dictment Bgainsl  the   two  prisonera  William 
Thomas  KiDncreley 
a  forth,  that  they  being  persona  of  ill    gery  of  ihii  note  wai  by  the  same  opportunity 
'  '  '      "        lo  deceive  Hr.  Edwarda,    taken  by  Mr.  Ualea,  in  eoqjuuclinn  with  1* 

Kionenley,  that  ibe  former  waa.     It  bath  bt 

*  8m  the  piMfdigy  and  f<rflotniig  CiHii 


Sec.  onlheSd  of  Marcb,  in  thefirst  year  of  his 
majesty's  reign,  did  forge  a  writing  porporling 
to  be  a  promissory  note,  &c.  The  mdictment 
further  aela  forth,  that  the  defendants  did  like- 
wise produce  end  publish  IbltipromiBSory  cole  of 
Mr.  Edwards's  Itir  1,650^  i  tlinl  knoning  this 
to  be  a  Ibrged  note,  they  did  publish  Ihe  said' 
note  liir  a  true  one.  Il  is  laid  in  oilier  words, 
that  they  forged  a  nole  of  Samuel  Edwanls's, 
wbereby  be  ia  supposed  lo  prorai^  to  pay  lo 
Thomas  Kiimerslev.  Hitliio  six  months,  the 
sumori,660f..&c.'  Toalllhese  facts  they  boll) 
have  pleaded  Nottiuiliy. 

All.  Gen.  My  lord  and  gentlemen  of  iht 
jury,  I  a[n  counsel  for  tbe  king.  Oeotlemeq, 
Ibis  is  an  indictment  against  both  tbe  de- 
fvndants,  fur  forging  a  promiKsory  note  in  lb* 
name  of  Saniuel  Eilwards,  eMj.  for  1,650'.,  pay- 
able  to  Thomas  Kinnemley,  or  order,  wjihin 
six  miiDths  after  date,  and  aliio  fur  publishinc 
Ibe  same.  And,  gentlemen,  lhou)[h  il  is  lai3 
•everal  ways  in  iTie  indiclmeiit,  tlie  note  ii 
one  and  tbe  eanie.  There  arc  nol  several  note*. 
Hales  and  Thomas  Kinncrs^ey.  This  indict-  j  Gentlemen,  it  will  apnear  to  you  that  this  for- 
menlseta  forth,  that  they  being  persona  of  ill  gery  of  this  note  waa  oy  the  same  opportunity 
fame,  and  intending  to  deceive  Mr.  Edwarda,    uken  by  Mr.  Ualea,  in  eo^juuclion  with  Hr. 

. Kinneisley,  that  Ibe  former  waa.     Itbatbb  — 

I  obMntd  alraady,  thai  in  nicf  of  Ihii  k 


W] 


far  a  MitdemeHnor, 


A.D.  17S9. 


[S70 


fieti  are  to  be  proTed  oDly  by  circumstances. 
PluD  tail  positive  proof  is  not  to  l)e  expected : 
brtioch  circumstances  speak  the  truth  often 
BOicpIahily  than  the  other  way  of  proof  doth. 
As  to  II r.  Hales,  Mr.  Edwards  being  too 
•bligin^  to  him,  he  made  use  of  it  to  much  the 
■BB  purpose  as  in  the  fbrmer  case.  But 
ilii«not  DOW  to  indorse,  but  to  make  a  pro- 

'.Ed- 


nute  fur  1,650/.,  payable  by  Mr 
vwdi  10  Mr.  Kinnersley,  within  six  months 
lAff  ^te,  and  dated  March  SO,  1728.     And, 
imJfiDen,  this  note  is  signed  on  the  back  with 
^  land- writing  of  Thomas  Kinnersley.    The 
Biooerof  this  forgery  will  appear  to  have  been 
ike  ibe  other:    but  it  will  appear  on  the  very 
Uet  of  it  manifestly  a  forgery.     Gentlemen, 
the  note  is  wrote  on  a  very  small  piece  of  paper, 
vbich  appears  plainly  to  nave  been  cut  oil  from 
umber  paper.     And,  gentlemen,  the  words, 
*  hx  the  value  received,'  are  uot  wrote  upon  the 
he  with  the  other  words,  but  a  little  below  the 
kM.    The  words  '  for  the'  appear  done  in  the 
miie  wanner  as  in  the  former  note  that  before 
caoe  under  your  consideration.    Here  \s  a  ff" 
neb  a»  before,  and  as  Mr.  Edwards  always 
iMtb,  then  an  r  which  appears  to  be  of  the 
wae  hand,  then  an  o  crowded  in  between  them 
«bicb  seems  net  of  the  original  writing.    One 
tf  Ibe  u^a  is  made  to  serve  tor  the  first  stroke  of 
Ihr  V,  and  a  long  stroke  between  the  two  ee'sy 
tbro'ifae  other  e  makes  up  the  word  y^.    Then 
'rihie  received'  is  wrote  in  another  manner  of 
bad.    This  seems  to  be  the  nature  of  the  for- 
fery;  and  none  can  doubt  it  a  furt^ery  that  in- 
apceia  it.    This  appears  to  be  done  from  n  frank 
coier  i>btained  from  Mr.  Edwards.     And  tliis  is 
tMrtbinir  rcmnrkahie  :    it  is  Koinethiii^  odd 
tini'fortlic  vaiuf;  received'  should  bc^  v.iotecn 
i&o:.W  line.     It  is  plain  that  the  words  arf  ret 
ibssMli]  because  of  the  word  wrote  h  t^rc,  and 
^thejf  be«jriiiDir.g  anothor  line  may  make 
the  better  appearance.    This  note  is  made  pay- 
able to  Mr.  Kiunerslry.     He  was  an  absolute 
■tnoger  to  Mr.  Edward?,  as  it  appeared  in  the 
P'Tmer  case.     There  wns  no  dealing  between 
Ur.  Edwards  and  Mr.  Kinnersley,  nor  no  co- 
bur  «it  any  such  dealing!,  hy  which  a  debt  of 
iQch  a  sum  as  this  should  b(Vnme  duo  from  Mr. 
£dvards  to  Kinnersley.     lint,  gentlemen,  this 
Mtf  thuH  made  for  l.ti'tOl.,  payable  within  six 
Bonttisfrom  Mr.EdwanIs  toKmuersley,  with- 
out ai!V  ilt-alin^s  between  them  to  irivc'a  foun- 
duiun  tor  it,  in  the  manner  1  hnve  shewed  von, 
»nifh  ts  sufiicient  to  make  it  appear  to  any 
a  foitf-ry,    is  indorsed  by   Mr.    KiunorRley. 
That  u  ill  appear  a  clear  evidence  of  the  forgery 
^jf  by    Mr.   Kinnersley.      No  man  in    hi* 
KB^s  would  do  this.     If  a  for<;oi|   note  for 
IjSoO/.  waii  made  in  ihp  name  of  any  person, 
nd  appeared  in  all  these  rircurnstaiicrs  of  a 
pkin  P>rgery,  no  man  in  his  senses,  and  desit>'n- 
iBKioact  a  fiair  part,  would  make  an  iu'lorsc- 
•mt  tbetvtu.      No  other  purpr»se.  thfrrefore, 
Kcms  aimed  at  in  the  indorsitu;  but  to  ^vi  the 
Metifoiog.     If  such  a  note  wns  olftTcd  to  a 
fur  sad  bonett  uian  to  indorse  would  he  not 
■inkat  it  ?    Would  he  evor  have  indorsed  it  ? 


Therefore,  this  indorsement  is  a  strong  evidenes 
against  him.  The  use  made  of  this  note,  thui 
forged  and  indorsed,  was  this :  it  being  in  th« 
hands  of  Mr.  Hales,  Mr.  Hales  wanting  a  sum 
of  money  applied  to  one  Mr.  Thrup,  dckiring 
him  to  lend  nim  bis  note  of  400/.  Upon  his 
doing  tliis  with  difficulty,  Mr.  Hales  deposited 
this  note  as  a  security  tor  his  money,  and  here* 
upon  this  note  continued  in  the  bands  of  Mr. 
Thnip.  Gentlemen,  upon  the  discovery  that 
was  made  of  another  forgery,  whereupon  Mr. 
Hales  was  apprehended,  there  was  a  suspicion : 
hereupon  Mr.  Edwards,  being  informed  that 
this  note  was  in  the  hands  of  Mr.  Thrup,  en- 
quired of  him  about  it.  The  thing  upon  this 
appeared,  and  Mr.'  Kinnersley  thereupon  was 
apprehended  and  carried  before  sir  Richard 
Hopkins.  At  first  he  seemed  willing  to  make 
ft  discovery  :  afterward  he  went  back,  and  de- 
nied ^I  thmk)  what  he  seemed  before  to  have 
owned:  that  will  be  proved  to  you.  I  think 
that  this  will  appear  plainly  to  have  been  ft  for^ 
gery,  and  to  have  been  done  by  Mr.  Hales  and 
Mr.  Kinnersley. 

Serj.  Whitaker,  My  lord,  we  will  go- on  in 
the  same  method  as  before,  by  calling  two  or 
three  witnesses. 

Thomas  Maddox  and  Anne  Clarke  were 
called,  sworn,  and  deposed  as  before. — As  ftlss 
Mr.  Booth.  Vide  the  preceding  Cases. 

Mr.  Charlton  Thrup  sworn. 

Att,  Gen,  Look,  Sir,  on  that  note,  and  ttH 
us  when  you  first  saw  it  before. 

Thrup.  On  May  the  22nd. 

Att,  Gen,  Who  brought  it  to  you? 

Thrup,  Mr.  Hales. 

Att,  Gen.  What  did  he  say  to  you  f 

Thrup.  He  brought  it  to  me,  and  desired 
me  that  1  would  give  him  on  it  three  notes  of 
500/.  I  refused  him  at  first,  alleging  that  it 
wns  not  for  my  credit.  At  length  1  put  into  his 
hand  a  pnunissory  note  for  400^  payable 
within  six  months. 

Att.  Gen,  Look  on  that  note  and  see  whether 
it  now  is  in  the  same  case  that  it  then  was. 
V/ns  the  indorsement  then  upon  it  ? 

Thrup.  1  cannot  say :  for  1  took  no  notice  of 
the  indorsement  till  I  delivered  it  to  Mr.  Booth 
at  the  request  of  Mr.  Edwards. 

Alt.  Gt'H.  fn  whose  custody  was  it  till  you 
delivereil  it  to  Mr.  Booth  ? 

Thrup.  In  mine.  Sir. 

Aff.  Gin.  Did  yuu  make  any  alteration  in 
it.** — Thrvp.  No,  Sir. 

Att.  Gen,  And  \^hen  you  gave  it  to  Mr. 
Booth  y(»u  mirided  the  indorsement,  did  you 
not? — Thrup.  Yes,  Sir. 

Att.  Gtn.  How  came  you  not  to  mind  it 
b**fore?  What  security  was  Mr.  Edwards's 
note  if  it  had  uot  been  uidorseil  ?  . 

Thrup.  I  had  such  an  opinion  of  Mr.  Ha^es 
that  1  suspected  uoiliiu:^,  and  therefore  (rave 
him  the  note ;  I  did  not  think  he  would  have 
been  guilty  'tf  so  vile  an  action. 

Att.  Gtn.  \\\\v\\  wui  it  that  you  delivered 
this  note  to  Mr.  B'joih  ^ 


fvr  a  Mudcmcamr. 

ka«a(benlliat  were  mule,  llmtthe 

M  wtiuea  nith  n  secretary  e,  hut  ibe  e 

'•■^  witicti  plainly  mpri*  1u  answer  lo 

>ad,  anJ  aliaw  that  iLal  is 

H(,  Tfenot  Bird  tvato, 
iluCtn.  Sir.  wbose  lianii  i>  lliaC? 
to^lir.  Kinaenley.  »ir,  owncil  that  to  Le 

JcAm.    W«i  it  (hpirril  by  y<ia  In  Mr. 
fapiliy  at  tbal  lime  wbcD  he  on  ned  il  i" 
■aw,  f  ci.  Sir. 

laarttrf.  And  did  I  own  it.  Sr  ? 

Il  6m.    Why,  you  owned  il   in  court. 

,  I  b*^  your  pardon,  Sir  ;  t  did 
d  ll.aL 

(i>ic  thai   unte  Id   the  Jury  lu 
I  wilb  Uie  oUiVr   uote  tkat  it   now 

J,  Witlnktr.  Blr.  Uneoln.  those  rece>|ili 
•«diyM  pnHlured,  <lld  Mr.  Kinnrraley  ac- 
lalhr  KM*  llinn  .' 
Iimh.  f  MW  him  write  tlietn  all. 
tmiWkHaktr.  Sbrwtliem  lo  the  jury. 
Ii^«  Bityaeldi.  Oenltumen  ol'lb«  jury,  in 
tami yaw  will  Sad  anine  receipia  wrote-  by 
Mt.  liwmity,  which  Mr.  Lincoln  sHcars 
nhlanrf;  tW  he  luw  him  write  then)  all. 
Jti.  Otm.    TIm  tiCKt  wiloess  that  we  will 


iitMlui|i«ariTi([norThoinas  Brooks,  who 

WMttMlM, 

Hir  Rjdtard  Uopkutt  ttvoTti. 
M.  Gtn.    8ir  lliohard,  we  muat   trouble 

Cia  p>e  an  account  upon  nhal  accounl 
KaMialcy  wta  brunglit  before  you,  and 

lb  a-  Jln-Inoi.  Itc  waabrnnghl  before  mc 
«^in...,i.,i,.,  iiu«  of  l.^iOOf.  and  tills  note. 
V- lien  he  WIS  before  yon,  was 
.-  ular  nenlioii  made  of  this  nole 

'II.    It  WM  giren  to   me  to 
\:  \Mvn\ty  about  il. 
-  f  Ridtard,  can  you  recdieci 
lUe  note  r 
"  I  M.    I  made  nn  mark  upon  it: 

t  IwOeve  ibat  lbi>  was" 
i  Otn.    Wat  it  abewed 
f 

L  B^kiM.  Tliii 

"     latKise   Sir.  Kinoerslpy   oiioo.      I 

,  ifit,  and  il  seeninl  lu  me  to   be  a 

Bafbrv  I  could  aay  any  lliinj^  lo  Mr. 

■     ■  leMilford  there. 

what  I 

'  Hold,  8ir(«iid  be), 

■or  hand.'  I  titnuglit 

>  |tinice  ol  peace.   I 

1 .  1*  this  your  hand 

1    I  the  niher  Tiof  in 

I'Telbre  lo  reoolkct 

iliat   ibry  «wi\ied 


A.  D.  1729. 

Mr.  Strange.  1  Ibink  lie  Offoed  the  one  In  be 
Ilia  hanil-wrilin^,  and  tbe  olher  not.  I  aik. 
Whether  ihat  wliieb  he  did  own,  Has  owned 
before  that  Mr.  Hitford  tntemipled  him,  or 
after  f 

mr  R.  Jlopkint.  It  waa  before.  Upon  tlial 
Mr.  Mitfonl  interrupted  him. 

Serj.  Wkitaker.  Upon  the  quesltnn,  when 
enquiry  wa»  made  whether  he  had  bad  any 
dcaliii^B  will)  Mr.  Ednarils,  what  did  be  aay  T 

Sir  R.  Hvpkini.  Both  Mr.  Edwarda  and  1 
asked  him,  whether  he  erer  had  had  any  dcal- 
ioffB  nilh  Mr.  EdwiinU?  To  which  lie  re- 
plied  No,  be  nerer  had  hail  any,  nor  erer  toth« 
best  of  bia  knowledge  had  seen  him  before.  1 
llirn  asked  him  bow  he  came  l«  draw  ibat 
n«te  payable  to  Mr.  Edwarda,  when  there 
neitr  liad  been  any  dealings  between  him  and 
Mr.  EdivnntH  f  He  answered,  That  be  did  it 
at  the  re<)ii(-Kl  of  Mr.  Halea,  to  whom  be  wa*. 
indebted  in  that  aum,  and  more. 

Judge  tUynoliii.  The  lirat  question  I  sup- 
pose was  (i^iierul,  whether  there  had  been  any 
dealings  between  lliena  i*  Aflerwaida,  when  Ihe 
noles  iveie  tliewn  liim,  he  owned  ibe  one, 
and  denied  the  other.    Was  it  not  ao  f 

Sir  R.  Ihpkmt.  Yes,  my  lord. 

Alt.  Gctt.  The  noxt  wilBcas  that  we  shall 
call  is  Thomas  Bab,  to  shew  lliai  there  was  a 


Thomns  Bai  swdid.  and  deposed  as  before. 

KinneriU<,.    Sir.  di.)  ire  ever  call  for  pen, 
ink  and  paprr  ? — iiab.  No,  Sir,  ncter. 
Mr.  Brooki  aworn,  depoaed  an  befora. 

Kinnerilfy.  There  could  not  be  much  dnn* 
at  night  without  a  candle- 

Broah.  No,  Sir  ;  but  you  had  been  there  a 
considerable  time  belbre. 

Mr.  Wright  Bwom. 

Serj.  WIdiiiker.  Were  you  present,  Sir,  at 
tile  eiiRiiuatian  of  Mr.  Kinnersley  before  air 
Richard  Hopkins?— ll'rifAt.  Yea.Sir. 

Serj.  Wh'lakir.  When  Mr.  Edwards  asked 
him,  whelber  there  had  been  any  dealings  be- 
tween them,  what  did  he  rc|ily  T 

Wright.  He  replied,  that  Uiere  nerer  had 
been  any  dealing  between  them,  and  that  h« 
nerer  bod  WFn  hiiu  till  that  time. 

Serj.  Wfiilaker.  Did  you  obaeive  any  inter- 
ruplion? 

Wright.  Mr.  Kionertley  was  aayioi;,  I  will 
tell  you  all  if  yon  will  give  me  trate.  Hf. 
Milfard  laid  his  hand  opon  him  and  said,  Hold 
your  lonffue,  be  careful  what  vou  say. 

Serj.  WAilakfr.  I  ask  whellier  be'bad  there 
related  any  thing  aa  lo  the  note  now  Id  i)Ueninii 
before  the  Interruption  ? 

Wr^ighl.     He  had   declared  that  that  nnta 

Kintitritey.  I  beg  leave  In  speak,  my  lord. 
Both  sir  Rii-hard  Ifopkins  ami  Ihatgentlemaa 
bnte  made  a  mialnke.  Mr.  Kdwnrd*  asked 
me.  How  olt  have  von  viaited  Mr.  Hat««i» 


875] 


S  GEORGE  11.         Trial  of  Wm.  Hates  and  T.  KinnenUyf         [871 


New|(ftte  ?  Upon  ibis  it  was  ihat  he  said.  Hold 
your  pence. 

Serj.  Wkitaker.  Wbat  was  the  question  that 
was  asked  Mr.  Rionersley,  when  you  say  that 
Mr.  Miifbrd  interposed  ?  ^ 

Wright,  I  cannot  say  what  was  the  ques- 
tion that  was  asked  immediately  before. 

8erj.  Whilaker,  But  you  say,  that  it  was 
af\er  that  Ive  had  denied  this  note  ? 

Wright.  Yes,8ir. 

KinatTM/ey.  J  would  only  ask,  Sir,  whether  sir 
Richard  Hopkins  disired  me  to  hold  my  tongue 
as  well  as  Mr..MiU'ord? 

Judge  Rejfnoldi.  Did  he  hid  Mr.  Kinnersley 
make  no  discovery  f — Wright,  No,  my  lord. 

Kinnerglejjf.  No,  my  lord:  But  he  hade  me 
take  the  gentleman's  advice.  1  appeal  to  sir 
Richard. 

Sir  Richard  Hopkitu,  The  gentleman  hath 
appealed  to  me.  I  take  it  that  the  question  is, 
Whether  I  advised  him  to  take  the  gentleman's 
advice  P  It  would  be  very  strange  that  I  should 
reprove  Mr.  Mitford  for  misbehaviour,  and 
vet  should  at  the  same  time  advise  you  to  take 
nis  advice. 

Wright,  Sir  Richard  asked  Mr.  Bird,  whe- 
ther Mr.  Kinnersley  owned  that  he  knew  of  the 
note  being  indorsed  that  was  in  his  hands  ? 
He  said  that  he  did.  Then  he  was  asked  when 
and  how  he  knew  this  ?  This  was  before  Mr. 
Mitford  interposed. 

Judge  Reynolds.  You  have  appealed  to  sir 
Richard  Hopkins,  that  he  advised  you  to  take 
the  gentleman's  advice.  Sir  Richard  denies 
this. 

Kinnersley,  But  he  cannot  deny  that  he 
said,  Take  your  friend's  advice« 

Mr.  John  March  sworn. 

Serj.  Whitaker.  Were  you  present,  Sir,  at  the 
•xaminatioii  of  Mr.  Kinnersley  before  sir 
Richard  Hopkins  ? — March.  Yes,  Sir. 

Serj.  Whilaker,  Pray,  will  you  give  us  an 
account  of  all  that  past  then*  at*^that  time. 

March.  My  lord,  I  was  nttending  upon  sir 
Richard  Hopkins  as  his  clerk,  when  Mr.  Kin- 
nersley was  broufifht  betoie  him  with  relalion 
to  these  notes.  \Vlien  th«)  tixst  nou?  was  pro- 
duce^l,  he  was  a^iked,  whether  that  note  was  his 
hand- writing  or  mil  ?  To  n  hich  he  answered, 
That  it  was.  When  that  was  gone  ilii*ough, 
the  second  note  was  produced,  being  a  pro- 
missory note  made  in  the  niiinc  of  i^fr.  Ed- 
wards payable  to  Mr.  Kirinerslt-v.  When  that 
note  in  the  name  of  Mr.  Kdwanis  was  produced. 
we  perceived  on  the  back  nf  it  the  naun*  of 
Mr.  Kinneniley  wrote.  Mr.  Kinnersley  having 
denied  this  note,  sir  Richard,  upon  comparing 
the  name  on  the  liack  of  tnis  note,  with  the 
Other  note  which  he  bad  owned  to  be  his  own 
hand-writii?!^,  said  to  him,  *^  1  would  have  you, 
Wr,  consider  very  well  whether  you  did  not 
write  that  too:  tor  it  is  Tery  like  that  wliich 
jrou  have  owned."  Upon  that  Mr.  Alittbrd 
interposed. 

Heru  Wkitmktr.  What  was  it  thai  Mr.  Mit- 
fiinlaMiayf 


March.  Mr.  Mitford  apoD  that  said,  <•  Hr. 
Kinnersley,  1  woubl  not  hare  you  anawrr  that 
question  ;"  or  to  that  purpose. 

Att.  Gen,  Did  sir  Richard  Hopkins  tdfin 
him  to  take  his  friend's  advice  ? 

March.  No,  Sir. 

Alt,  Gen.  Did  he  reprove  Blir.  Mitlord  fit 
interjposing  ? 

March.  Yes,  Sir.  He  desired  him  to  h 
quiet ;  and  told  him  that  he  would  atk  whil» 
ever  questions  were  desired,  but  desired  thatli 
would  not  interrupt.  ' 

Att.  Gen.  Was  his  denying  of  the  Dtli  !•> 
fore  or  after  the  interruption  ? 

March.  He  had  first  intermpted  during  lit 
examination  on  the  Grst  note,  and  he  nfteriiMl 
interposed  during  that  on  the  second  note. 

Alt.  Gen.  Well.  But  I  ask  you  u  toAi 
second  interruption,  whether  it  was  bcfim  • 
after  his  denying  his  hand  ? 

March.  It  was  after. 

Serj.  Eyre.  You  were  saj^ing,  Sh*,  tbttnr 
Richard  bttde  him  recollect  himself,  and  d** 
aider  well  whether  this  was  not  his  hand  tm^ 
for  that  it  was  very  like  that  note  which  IM 
had  owned  to  be  his  own  hand-writing.  Had  wtt 
Mr.  Kinnersley  before  that  said,  that  be  M 
not  sign  that  note  ? — March.  Yes,  Sir. 

Att,  Gm.  We  rest  it  here,  my  lovi,  irf 
leave  the  considemtion  hereof  to  the  jury. 

Mr.  Mather.  1  would  ask,  wbcihcr  Mr. 
Mitford's  advice  was  not  that  he  shoeUl  Itf 
speak  too  fast  ? 

March.  No,  Sir;  it  was  that  he  shonii  at 
answer  to  that  qiicstiun. 

Kinnersley.  They  contradict  one  nnote) 
and  Mr.  Bird  will  swear  ahy  thing. 

3 xk^QG  Reynolds.  You  may  prove  that  ts^ 
his  character  if  you  can ;  but  without  that  yli 
oun:ht  not  to  aver  it. 

Bird.  It  is  well  known,  my  lord,  wbat  Of 
character  is.  1  have  persons  of  good  OfsA 
that  have  known  me  ihLse26  years:  I  but 
never  fu  hi  tied  my  word. 

Mr.  L(u'y,  My  lord,  1  have  nothing  msteriiL 
in  ujy  instructions ;  and  therefore  1  shall  not 
trouble  your  lordship. 

^i:\'y'Eyre.  My  lord,  1  am  counsel  for  Mr. 
Kinnfrstey.  I  admit  that  they  have  profsi 
tiiat  there  wos  an  intimacy  between  them.  It 
is  detrimental  to  niy  client  that  there  was  rack 
an  actjuaintance  when  the  one  was  parishioMr 
formerly  to  the  other,  and  that  this  acquaial^ 
ancc  was  ki^pt  up  to  the  last :  but  it  doth  Ml 
follow  that  they  arc  to  be  coniiiilered  as  onsi 
Jf  Mr.  Hales  be  never  so  gniUy,  it  doth  nSl 
appear  that  Mr.  Kinnersley  is  guilty.  AsM 
this  indictment,  the  charge  is  forginfi^  a  note  h 
the  name  of  Mr.  Kd wards,  and  indorsing  thi 
same.  It  is  admitted  that  Mr.  Kinnersley  kafi 
no  acquaiiitance  with  Mr.  Edwards :  but  ei 
the  otlier  hand  it  is  pretty  pUin,  by  Ike  Cfi^ 
dence  that  hath  been  given,  that  there 
acquaintance  between  Mr.  Edwards  and 
Hales.  They  were  near  neighbonrs: 
Edwards  hath  indulged  him  with  innknfti 
several  years.    Mr.Uakiisaiiiaaimisr 


Jbr  a  Misdemeanor. 

Rr  BUoy  jnn,  bath  bad  a  commia- 
aakniptcj  awarded  ai^inst  him :  It  ia 
ml  lor  attcb  a  perann  to  deal  rather  in 
pmoD'a  name  than  in  hia  own  ;  if 
there  be  an  intimacy  between  Mr. 
i  Mr.  Edwards,  Mr.  Hates  should  ap- 
r.  JSdwarda,  and  he  upon  his  request 
ife  bim  such  a  note,  I  do  not  wonder 
fentleaian  of  character  should  indorse 
ile  ainftied  b^  a  person  of  such  figure. 
^  MCIB  very  unnatural,  that  afler  their 
■iDtance  a  note  pa3'able  to  Mr.  Kin- 
w  trust  for  Mr.  Hales  should  be  in- 
'  Mr.  Kinnersley :  This  may  be  sup- 
ecate,  if  actually  he  did  indorse  the 
do  not  see  why  he  may  not  be  sup- 
easily  imposed  upon  as  the  other  gen  - 
iz.  Mr.  Thrup.  Ji  is  not  so  plain  a 
(that  Mr.  Thrup,  who  is  a  gentleman 
My  could  discern  it.  Why  must  we 
hen  that  Mr.  Kinnersley  roust  dii- 
If  then  Mr.  Hales  is  iruilty  of  the 
it  doth  not  follow  that  Mr.  Kinnersley 
W.  As  to  the  other  point,  it  is  no 
bat  there  should  be  the  name  of  Mr. 
ay  oo  the  back  of  the  note :  Any  that 
rge  a  note  will  not  scruple  to  forge 
MBCOt.  It  is  as  likely  as  possible,  and 
that  would  forge  a  note  in  Mr.  £d- 
mme  for  such  a  sum,  may  be  as  easi- 
aed  to  forge  an  indorsen^nt  on  this 
low  have  tliey  proved  that  it  was  in- 
f  Mr.  Kinnersley  ?  Two  or  three  gen* 
ave  been  produced  as  witnesses,  that 
n  his  hand  several  times,  and  from 
itade  of  the  letters  they  believe  it  to  be 
:  But  there  is  such  evidence  to  be 
f  given  of  one  man's  writing  like  ano- 
It  a  similitude  of  hands  is  not  to  be 
I  at.  It  is  not  to  be  wondered  at  that 
rould  be  guilty  of  forginjif  the  whole 
aid  indorse  it :  VVhtMher  there  is  any 
tin  the  hand  between  the  writin(;s  that 
Q  produced  and  this  note  and  indorse- 
jiit  be  left  to  the  jury. 
lieynoldf.  Have  vou  any  witnesses? 
rs/ry.  I  beg  a  word,  my  lurd. 
Reynolds,  Not  till  we  have  heard  the 
at  the  counsel  say. 

lather.  I  take  notice,  my  lord,  that 
tth  been  a  variance  among  the  wit- 
I  to  what  past  at  bis  examination  he- 
Richard  Hopkins.  The  only  caution 
I  given  him  was,  that  he  should  not  be 
ID  bia  answers,  as  your  lordship  hath 
e)  thought  him  very  rash  in  his  con- 
r.     We  shall  only  call  a  witness  as  to 

Rev.  Mr.  John  Haya  sworn. 
Imtker,    Mr.  Hayes,  please  to  give  my 
the  jury  an  account  what  passed  as  to 
of  1,6M)/. 

•  When  this  note  was  produced  before 
ifd  Hopfcios,  and  shewe<l  to  Mr.  Kin- 
spannewing  him  the  name  on  the 
the  Mtc^  he  abaolutely  denied  it  to  be 


A.D.  1729, 


[278 


Mr.  Mather,  Did  you  hear  Mr.  Mltford  in- 
terrupt ? 

Hayes,  I  remember  that  there  was  a  dispute 
between  sir  Richard  Hopkins  and  Mr.  Miifurd. 
There  were  minutes  taken  of  Mr.  Bird*s  exa- 
mination :  u|>on  the  reading  these  minutes,  Mr. 
Mitford  apprehended  them  not  to  be  riu^htly 
taken  accordiusr  to  the  evidence  that  was  given. 
Upon  this  Mr.  Bird  was  re-examined,  and  then 
there  was  another  question  proposed  concern- 
ing Mr.  Kinnersley's  going  to  Newgate  to 
visit  Mr.  Hales.  'J^hen  Mr.  Mitford  again  in- 
terposed. 

Mr.  Mather,  Was  that  the  reason  of  the 
interruption  ? 

Hayet.  Yes,  Sir,  I  believe  it  was. 

Mr.  Mather,  Was  there  some  other  part  io 
which  he  had  also  interposed  ? 

Hayes,  Yea,  Sir. 

Mr.  Ward  sworn. 

Mr.  Mather.  Sir,  were  yon  present  at  the 
examination  of  Mr.  Kinneraley  before  sir  Rich- 
ard Hopkins? — Ward,  Yes,  Sir. 

Mr.  Mather,  Give  us  an  account  of  the  in- 
terruption by  Mr.  Mitford. 

Ward,  Mr.  Kinnersley  was  examined  as  to 
the  note  of  1,260/. :  Mr.  Kinnersley  being 
examined  aa  to  that,  there  happenc^d  some 
words  t9  pass  between  bim  and  Mr.  Bird: 
after  some  hesitation  and  dispute,  he  having 
acknowledged  that  note,  it  was  put  down  in  the 
minutes.  After  that  he  was  examined  as  to 
this  note  of  1,650/. :  Upon  his  denying  that  it . 
was  his  hand,  Mr.  Kinnersley  was  askeii  some 
question  by  sir  Richard  Hopkins  concerning 
somewhat  that  he  had  formerly  said  ;  where 
upon  he  desired  to  be  exantined  in  the  c(mrt 
of  aldermen.  Mr.  Mittord  hereupon  desired 
him  not  to  desire  this. 

Mr.  Mather,  My  lord,  the  reason  that  we 
bring  this  witness  is  to  shew,  that  he  had  con- 
fessed all  that  he  could  at  that  time,  and  there 
was  no  resison  therefore  for  Mr.  Mitford  to  inter- 
pose for  the  preventing  Mr.  Kiunersley^s  mak- 
ing a  discovery. 

Kinnersley,  My  lord,  when  tliis  note  was 
shelved  me  before  sir  Richard  H(»pkins,  it  was 
the  first  time  tliat  I  ever  saw  it :  I  therefore 
denied  it  to  be  my  hand  ;  hut  l»v  looking  upon 
it  more  closely,  1  own  ihut  it  is  like  my  hrnd. 
Thoui^h  nonv  can  oblige  me  to  s:iy  any  thing, 
I  would  he  ccntent  to  he  examined  ;  and  thf>re- 
fore  have,  though  not  regarded,  stdemnly 
averred  ihat  1  was  not  privy  to  his  getting  of 
that  note  or  money.  As  to  the  ottier  note,  1 
owed  him  at  that  time  the  1,260/. ;  I  gave  him 
that  note  for  it,  and  would  not  uilh  tha*  8(deiri« 
nity  say  that  it  is  not  mine.  He  hath  got  it 
sonte  other  way  indorsed:  Jiut  as  to  ttiis  note 
it  is  not  mv  hand.  Had  !\Ir.  Hales  briMit;ht 
Mr.  £dwards*H  n(»te  to  me,  and  desirinl  me  to 
indorse  it;  though  1  own  that  J  tinnk  that  it 
hath  the  marks  of  forgery,  yet  if  Mr.  Thrup 
and  others  were  imposed  upon,  why  mi«r|it  not 
1  ?  Why  should  I  suspiict  him  more  than 
others  f  I  own  that  I  bad  a  great  contidei;c«  inr 


S79] 


5  GEORGE  II.         Trial  of  Wm.  Hales  and  T.  Kinnersley, 


liim.  SuppouD^  tbis,  will  yon  ooDdemn  me 
for  an  unjust  thing  ?  I  take  God  to  witneM, 
that  I  nefer  set  my  hand  to  that  note,  nor  nefer 
took  any  money.  I  beg  pardon,  I  will  say  one 
word  more :  the  ipentleman  hath  taken  notice 
rightly  that  I  have  spoken  rashly ;  it  if  an  op- 
pression, and  the  wise  man  saith,  that  "  Op- 
pression will  make  a  wise  man  mad,"  which  b 
worse  than  rash. 

Att,  Gen,  My  lord,  be  bath  intimated  that 
tliis  is  an  unjust  and  oppressive  prosecution :  I 
submit  it.    Proper  eTidenoe  hath  been  given, 
and  be  hath  replied  to  it  by  his  counsel.    The 
counsel  suppose,  that  it'  the  whole  note  was  Mr. 
Hales's  hand-writinfift  it  was  Tery  likely  that 
lie  would  not  scrupfe  the  indorsement.    Mr. 
Kinnersley  himself  seems  to  adofit,  that  for 
aught  he  knows  he  might  have  indorsed  snch 
a  note;  but  the  turn  that  he  gives  it  is  this: 
If  such  a  note  was  wrote  in  the  name  of  Mr. 
Edwards  payable  to  him,  he  might  indorse  it, 
being  brought  by  a  creditable  and  nonest  person. 
If  a  note  was  made  payable  to  him  by  a  gentle- 
roan  of  such   figure  and  character,   and  so 
brought  to  him,  be  thinks  that  he  might  indorse 
it,  and  would  ao  have  done :  But  it  is  impos- 
aible  that  it  could  be  fairly  done ;  there  must  be 
something  fraudulent  in  it.    The  evidence  on 
the  side  of  the  king  shews,  that  there  must 
have  been  a  conspiracy  between  these  two  per- 
ions  to  defraud  several  persons :  As  the  other 
note  was,  without  any  colour  for  it,  made  pay- 
able to  Mr.  Edwards,  his  name  being  indorsed 
upon  it,  he  beibg  a  person  of  ability  to  credit 
the  note ;  So  this  second,  on  the  other  hand, 
without  any  foundation  also,  because  no  colour 
of  dealings  between  them,  is  made  in  the  name 
of  Mr.  Edwards,  payable  to  Mr.  Kinnersley, 
and  Mr.  Kinnei-slev  s  name  indorsed.    Why 
sbuuld  Mr.  KiunerBley's  name  be  put  to  it,  but 
only  to  give  a  currency  to  this  note  P  When  a 
note  is  made  payabli^  to  any  person,  it  cannot 
be  negociated  by  any  other  without  his  hand 
being  put  to  it :  His  hand  therefore  was  not  so 
much  to  give  a  credit  to  the  note,  he  being  a 
man  of  no  substance,  as  to  give  a  currency  to 
the  note,  it  being  in  hb  name.    When  that 
appears  to  you,  it  is  (I  think)  sufficient  to  con- 
«moe  yourjud(;nients  tliat  Mr.  Kinnersley  is  a 

gartncr  in  this  forgery,  otherwise  be  would  not 
ave  indorsed  this  note  in  these  circnmstances. 
Serj.  Whitakcr.  My  lunls,  it  is  very  extra- 
ordinary for  a  person  to  pretend  such  a  note 
belonging  to  him,  that  never  had  had  any  deal- 
ings with  Mr.  Eiiwards.  What  proof  hath  he 
given  that  he  did  not  indorse  it  P  What  colour 
IS  there  to  say  that  this  is  a  rash  prosecution  ? 
Kinnersley,  BIy  lord,  1  beg  a  word.  I  say 
not  that  it  is  rash,  as  to  the  whole  prosecution : 
but  I  never  was  privy  to  any  wickedness  in 
this  note,  nor  in  anv  other:  If  I  had,  I  would 
never  have  appeare<f  here  in  my  ^wn.  My  cha- 
racter ought  not  to  exempt  me  if  1  am  guilty ; 
1  ought  to  abstain  from  all  appearance  oif  evil : 
Wlm  I  have  forfeited  that  character,  1  desire 
to  live  no  longer  among  mankind.  I  asked 
Mr. Uaki M what acoaimt I wu  mmtfntfmA 


whether  there  were  any  note  of  mine 
said.  Yes ;  there  was  a  note  of  1,650/.  p^ 
by  Mr.  Edwards.  Is  it  (said  1)  a  true 
Is  it  wrote  by  Mr.  Edwards  P  He  aha 
head  and  said.  Just  as  true  as  the  oth 
asked  him  whether  it  was  indorsed  P  To 
he  replied,  Yes<  Had  I  known,  my  lor 
the  note  was  indorsed,  I  need  not  nave 
Mr.  Hales.  He  b  ready  to  do  me  j 
though  he  must  thereby  take  it  upon  hi 
Your  lordship  knows  that  I  have  no  s^l 
racter  in  Suffolk. 

Judge  Reynoldi.  We  shall  not  neec 
Kinnersley,  to  go  to  Suffolk  for  youi 
racter.* 

Judge  Reynolds.  Gentlemen  of  the 
William  Hales,  late  of  London,  goldsrail 
Thomas  Kinnersley,  clerk,  atami  indict 
forging  a  note  under  the  hand  of  Mr.  £ 
Edwards,  for  1,650/.  payable  within 
months  to  Thomas  Kinnersley,  or  ordei 
the  date  thereof,  for  value  received :  At 
other  part  of  the  indictment  charge th 
with  publishing  the  same.  To  this  indn 
they  have  pletuied  NotGnilty:  The  qi 
you  are  now  to  determine.  Gentleiiie 
foundation  of  this  which  bath  been  insii 
by  the  counsel  on  the  aide  of  the  prose 
is,  tliat  these  gentlemen,  or  rather  the 
them,  Mr.  Hales,  having  an  acquaintanc 
Mr.  Edwards,  and  being  indulged  by  hi 
liberty  of  applying  to  him  for  franks,  the 
made  a  wrong  use  of  this,  and  by  con« 

*  In  Trinity  term  5  Geo.  there  was 
fonnation  against  this  Mr.  Kinnersley  a 
Moore,  as  being  evil-disposed  persons,  ii 
to  extort  money  from  my  lord  Sunder laj 
conspire  together  to  charge  my  lord  w: 
deavouringto  commit  sodomy  with  th 
Moore;  and  that  in  execution  of  tbi 
spiracy,  they  did,  in  the  presence  and  h 
of  several  persons,  falsely  and  malicioui 
cuse  my  lord,  that  he  '*  conatus  fnit  r\ 
neream  habere*'  with  the  defendant  Moa 
so  to  commit  sodomy.  Kinnersley  oi 
peared,  aud  pleads  to  iasue,  and  is  found  | 
and  several  exceptions  were  taken  in  ai 
iudgment,  see  Strangers  Reports,  vol.  1, 
but  the  Court  over- ruled  them  all.  Whe 
judgment  was  given  for  the  king,  and 
wards  the  Court  proceeded  to  sentenc 
told  the  defendant  Kinnersley,  nothing  ! 
being  a  clergyman  protected  him  from 
poral  punishment ;  they  fined  him  50* 
year's  imprisonment,  and  to  God  surei 
his  good  behaviour  for  seven  years.  In 
term,  5  Geo.  Moore  Wax  convicted  an 
tenced  to  stand  in  the  pillory,  suffer  a 
imprisonment,  and  to  nnd  sureties  lor 
years.  And  this  term,  Kinnersley,  o 
davits  of  his  being  indisposed,  moved  the 
that  lie  might  be  admitted  to  the  bene6t 
rules.  Sed  per  Curiam,  we  never  do  it  tor 
execution,  which  diflSera  from  the  case  of 
SOD  oommittad  for  hisb  treason,  who  bav 
bailed  00  account  of  iUoess.  lb.  I96.1bni 


'  a  M'ademtanor. 
«  if  ttiE  \eatn  tf  ih»  word  ■  fTree'  ioin 
•In  tlx^."  uiil  hy  trtiliog  aome  flilier  worJs, 
tejr  k>Tc  DOW  iDrmril  il  mlo  a  nrgociable  note 
fir  lb*  ntm  «f  l.USU/.  jiiynble  williiti  six 
■Mih*  M  Mr.  KliuierKle;,  or  hin  order;  And 
Aw  Mr.  KiBDcntkf ,  tn  ^rs  a  circiiUtion  tti 
feaaic,  and  make  il  ntfgociable,  baih,  la  cam ' 
tMBWB  wtib  Mr.  U>Ifb,  iDdaneil  bis  nsme- 
M*.  Uaar^*  \»  mpontitile  lo  any  body  lo 
«tMi  4W  wote  »  trinKferrtil  oTtr.  Genlle- 
■■.IKMakraul  ihlstoWtliecBSe,  they  tiave 
fttiMbsrouml  In  «liew  ihal  Mr.  Hale*,  fat 
mmi  liBF,  on  Mfml  preteoces,  prorared  a 
■ahir  *f  aaptrscTiptiftiiB  to  be  writleo  for 
taht  l>r  !llr.  Edwania,  who  is  a  niember  of 
fHfaMst,  and  particularly  (ome  auppnciip- 
tfiMiniMcli  circuroslaucea  as  were  moat  ac- 
■^iMadaWd  lo  aer*e  a  dmign  of  ihia  oature. 
iii  M  tU*  end  they  h»i>e  produced  Thomas 
■iMr,  ■  Mrrtaul  of  Mr.  Edwards's.  He 
■ilh,  Ihu  Ur.  lUIes,  lirina  near  Mr.  Ed- 
■«4a  in  Dulcc-sireei,  in  WeKtminater,  haili 
mtntA  than  applied  lo  him  for  frank  Fo?er8  to 
«ari  MWK  into  the  cuuntry:  thai  Mr.  Ed- 
««<i«  kaitt  PITCH  iiim  seTeial  for  thai  purpose, 
htf  ft  n  Si  ally  wrote  the  whole  sujiertcriptioii 
Vi^BiC  iHirmaiit  tu  the  directions  that  were 
piM  him:  that  In  July  Um  there  came  a 
■MMlsf  fVaak*.  SIX  of  them,  wlimruftive  have 
M  fnduced,  lo  be  franbed,  but  without  any 
Acoan  In  irboBi  to  vuperacribe  them.  Mr. 
IIbbi4«  *«i  dein«d  lo  frank  tbem  wilhont 
mn  MtpKncrijitiori :  Mr.  Edwards  refuseil  lo 
nifc  iMoi.  Hiiinis  directed  to  wbum  lo  aupn- 
■ntellMm:  Thu«  Iheaecoters,  upon  thai, 
WMaal  dooeal  ibal  lime.  But  ihea  lo  shew 
Ml  «lwl  pMt  aflerwards  llpnn  occnslnu  of 
iHhbitks  >cul  la  he  frinked,  Anoe  Clarke, 
a  Mrtanl  alau  lu  Mr.  Edwards  was  callad. 
ikMh,  Ihal  sometime aAerlbii,  Mr.  Hales's 
^iMH  cam*  a^in  ov«r  lu  Mr.  Edwards's 
blow,  and  told  her  that  Mr.  EdiranU  having 
i<— d  to  frank  his  master'^  cuiers  williout 
Wfamptiona,  \\*  had  bronghl  from  his  master 
■  faftrwf  ihtectiuns  what  aupvncriplions  he 
4Mr«d  Mr.  Bilwards  to  ]iut  lo  tbem.  Tlial 
■tpst  a(  dirrctions  hath  been  produced,  and 
Llh  hern  ■*>«!■  hy  Mr.  tloolh  to  be  Mr. 
tLt^mma  lnDd-wriiiii|r.  Tbey  trcre  very 
Ann  dvidfOna . 

T«o  In  Mr.  Lt'Tell,  of  HuDtiaston. 

TwawJohu  I'mli,  eMi.At  Bristol. 

T»a  Iwiftffeti  Mitford,  owj,  I^eler, 
iad  Ibey  miubl  inlvr,  lltit  as  ihese  superscrin- 
tma  wrra  icry  abort,  and  W  won' )  not  tsRC 
^■ucli  rfMim,  a  Tactnl  upace  would  liavcheen 
Maad-JEDI  tn  trritc  any  tiling  of  this  nniure, 
1\M  ■■  ri>«  maun  of  Ibeir  pradneJne  an  accounl 
'*'*  ~  icrioii,  which  dolh  nut  immtidiately 

uae.bntnnlv  at  they  areinclinahfe 
tt  (ome  such  IVank  may  hsTebcm 
Wfc  «*e  at  lo  anrh  «n  end  as  tbrsr  seem  lo 
iMahnrndengnnl  for.  And  thi-n,loBhewynu 
fciaa  which  tlivy  m^de  herrof,  tbc  note  [i 


"Iprflmiaelu  pay  in  Mr.  Thomas  Kiiuers. 
ley,  or  his  order,  withio  six  monihg  at\er  data, 
ibe  sum  of  siiteeo  hundred  and  fifty  pounda 
lor  ibe  tbIub  recalled, 

"  Marck'-iO,  17S8.  Sahdel  EDWaaw." 
and  on  Ibe  bark  il  is  indot«ed  with  the  oanie, 
Thomas  Kinnersley.  Gentlemen,  they  have 
insisted  upon  it  ihal  Ihe  neie  itsvlf  carries  the 
evident  marks  of  forgery  upon  il.  They  say 
ihnt  this  it  so  plainly  derived  from  Ibe  I'lanK 
cover  of  a  letter,  thai  Ibe  word  '  (Tree'  Is  not 
wholly  covered,  but  thul  still  some  of  il  ap- 
pean ;  thai  llie  stile  is  oniisDEd  '  for  llie  ralue 
received.'  '  The'  in  a  lar^je  hand,  and  then  af- 
terwards ■  value  received,'  the  u  of  a  round 
hand,  wliereas  all  Ihe  other  ee  me  of  a  ijuile 
diHerent  figure,  in  a  secretary  band.  Olher 
obsertaliont  they  have  also  made,  which  you, 
thsi  have  rieweo  the  note,  can  easily  jud^e  of. 


for  that  purpnie  they  have  produced  Mr.  Charl- 
ton Tbrup.  He  sailli,  that  on  May  92d  ta>tthit 
defendant,  Mr.  Hates,  brciii{;hl  this  note  to  him, 
deiirio^  bim  to  tend  him  three  boul.  notes  npoit 
il;  thai  he,  not  caring;  tn  have  bis  credit  en- 
gaged lo  lucb  a  decree,  refused  to  do  il;  bnt 
upon  bis  imporlUDity,  did  at  last  consent  to 
give  bim  a  promissory  note  of  400/.  upon  ihe 
security  of  Ibis  note,  whieh  Mr.  Hales  there- 
upon then  de|>osiled  in  bit  hands  ;  thnt  il  waa 
a  note  for  1,850/.  aipied  by  Mi.  Edxards, 
payable  to  Kinnersley,  and  indorsed.  Ha 
Bsith,  indt'ed,  that  be  did  not  Iticn  observe  the 
indortemeaL  Seeing  this  noie  signed  with 
Mr.  Edwards's  hand,  and  knowing  him  to  be  a 
mtn  of  ffr«ai  sufficiency,  he  was  not  to  atien- 
live  lo  tlte  other.  He  sailh,  that  be  kept  lliia 
note  in  his  band  till  alter  that  Mr.  Hales  waa 
taken  up,  aitd  then  he  delivered  it  hy  Iha  dire«> 
lion  of  Mr.  Edwards  loMr.  Boolh;  ihalbefora 
It  vent  out  of  bis  hands,  he  observed  the  in- 
dorsement. Hesweui'salgo,  thalil  received  no 
alteration  in  the  mtermedl ale  space  between  ita 
coming  into  his  hands  and  its  going  out :  it 
most  be  therefore  iudorsed  before.  He  sailb, 
that  at  to  his  own  note,  he  knnweth  not  what  is 
cume  of  it,  but  believes  I  but  il  is  in  the  hands  of 
Mr.  Maddoi,  at  the  Bank.  To  shew  that  this 
is  a  forircd  nole  they  bafe  called  Mr.  Spicer, 
who  halh  been  above  twenty  years  conoerned 
for  Mr.  Edwards  ;  ahout  ten  ur  twelve  as  his 
clerk.  He  sailb  Ihat  the  name  it  Mr.  Ed- 
wards's, and  that  the  ff  is  also  liis  ;  that  il  ia 
bis  roaster's  conttani  custom,  when  be  franha 
a  letter,  to  write  Ibe  word '  fTree.'and  ual  *  frank' 
over  his  name,  in  ihe  manner  wherein  ihis 
orig:inally  stood,  and  tbul  always  with  a  ff.  He 
aaitb,  Ihat  he  likewise  thinks  that  the  r  is  hit 
master'*  hand-writing,  hut  that  the  o  is  since 
crowdeil  in  bclween  Ihose  lettert.  He  thinks 
that  there  are  plain  footstrtis,  which ahew  Ihat 
the  first  of  ibe  Iwo  ce  wiilch  joined  lo  form 
the  woid'  ITree,'  hath  been  made  use  of  lofi>rui 
the  hrvt  ^rl  of  the  heuit  of  lliey,  and  the  other 
stroke  bein^dratrD  between  tlAf  and  the  other 


983] 


S  GEORGE  II.         Trial  of  Wm.  Hales  and  T*  KinnerHey^         [281 


tf  j  it  forms  the  word^'^  but  then  it  doth  not  stand 
at  usual  ofer  the  y.  And  then  be  observes, 
that  he  the  rather  believes  this  to  be  his  mas- 
ter's f,  for  that  he  always  writes  such  an  baud, 
and  all  the  rest  here  are  in  quite  another  hand. 
And  he  saith,  that  he  believes,  that  beioff  ac- 
quainted with  his  master's  aflfairs,  he  should 
have  known  of  it,  if  that  there  had  been  any 
such  transaction  of  his  master's,  and  that  this 
note  too  is  of  a  quite  different  form  from  any 
that  his  master  ever  delivered,  and  in  a  manner 
therein  his  master  doth  not  usually  transact 
his  affairs :  for  that,  as  he  is  a  man  of  fi^reat 
credit,  he  never  knew  him  give  a  note  for  time  ; 
and  in  the  next  place  he  is  so  very  cautious  that 
he  never  knew  him  give  a  note  but  that  he  wrote 
the  whole  body  of  it  with  his  own  hand,  whereas 
the  body  of  this  note  is  not  his  own  hand,  and 
therefore  contrary  to  the  method  that  he  usually 
observes.  Thus  far  the  evidence  is  product, 
in  order  to  charge  Mr.  Hales,  one  of  the  de- 
fendants :  but  tlien  in  order  to  prove  Mr.  Kin- 
nersley  a  partner  in  this  transaction,  they  have 
afterwards  observed  upon  the  indorsement  that 
this  note  beinnjr  made  payable  to  Mr.  Kinuersle}', 
it  could  be  of  no  use  tilliudorsed  by  him  to  ^ive 
it  a  curreiicv.  They  have  shewed  the  hand 
upon  the  hack,  and  in  order  to  prove  his  name 
wrote  there  to  be  his  hand,  as  in  cases  of  this 
nature  noihin<^  but  an  observation  of  the  simili- 
tude of  hands  can  be  expected,  they  have  called 
on  those  that  have  seen  his  hand,  to  give  their 
o|)inion  thereof.  The  first  man  expresseth 
himself  with  a  great  deal  of  caution,  seeming  to 
apprehend  ut  hrst  that  he  was  called  to  swear 

{)ositIvely  that  it  was  his  liand :  he  saith,  that 
le  hath  seen  him  write  several  times,  particu- 
larly at  least  three  or  four  times  the  last  year  ; 
that  tills  is  so  like  that  he  verily  Mieves  this  to 
be  hi;!  hand,  and  cannot  alter  Lis  judgment  as 
ixi  it.  To  the  same  purpose  they  have  also 
produced  another  person,  one  Mr.  John  Lin- 
coln: he  saith,  that  he  hath  seen  him  urite 
several  times,  and  put  his  name  to  receipts  in  a 
book  :  and  that  he  cannot  believe  but  that  this 
is  his  hand- writing.  Some  of  you  having  de- 
sired to  see  and  compare  with  this  note  the  other 
note  which  was  formerly  proved,  it  hath  been 
again  proved ;  and  as  the  person  aforemention- 
ed jiroduced  several  receipts  which  he  saw  him 
write,  you  have  had  them  also  to  look  upon : 
which  how  far  it  will  help  you  in  forming  a 
judgment  you  are  to  judge.  Further,  they 
say,  that  Mr.  Kinnersley  was  a  stranger  to,  and 
had  no  transactions  with  Mr.  Edwards.  They 
have  called  several  persons  that  were  present  at 
the  examination  of  Mr.  Kinnersley  before  sir 
Richard  Hopkins,  as  well  as  sir  Richard  hini- 
lelf,  who  all  say  that  Mr.  Kinnersley  himself 
owned  this,  and  wasgoin^  to  say  something 
further,  bad  he  not  l)een  mterrupted  by  Mr. 
Mitford.  8ir  Richard  Hopkins  hath  been  pro- 
duced. He  saith,  that  in  the  latter  end  of  Sep- 
tember last,  Mr.  Kinnersley  was  brought  before 
him,  charge<i  with  two  notes,  tiz.  one  of  1,260/. 
and  this  note  of  1,650/. ;  that  they  entered  into 
the  eTtminatioQ  of  the  fint  notei  which  he 


I  owned  very  frankly  to  be  his  note,  written  with 
his  own  hand ;  that  they  then  entered  upoo  the 
other  note,  which  he  verily  believes  to  be  tb# 
same  that  bath  been  here  produced ;  that  BIr. 
Kinnersley  having  denied  this  indoraemeDt  to 
be  his  hand,  he  desired  him  to  recollect  whether 
this  indorsement  was  not  his  hand  too,  for  that 
he  observed  a  very  great  likeness  of  the  hand 
between  that  and  the  note  which  he  had  owned 
to  be  his  hand- writing,  and  delivered  the  note  ID 
the  defendant  Kinnersley  to  look  u|Km ;  that 
upon  this  Mr.  Mitford  came  up  to  him,  and 
said,  '  Answer  nothing :  this  is  not  your  band- 
writing.'  He  saith,  that  upon  thii  Mr. 
Kinnersley  said  the  same  thing,  that  this  ww 
not  his  hand- writing.  He  saith,  tiiat  be  asM 
him,  w  hether  he  had  had  any  dealings  with 
Mr.  Edwards  P  That  he  replied  that  he  had  not, 
and  that  till  this  time  he  was  an  utter  stranfff 
to  his  person.  He  saith,  that  Mr.  Mitford  and 
he  baa  some  high  words  upon  this  occasn^ 
he  reproving  him  for  interposing  when  he  ap» 
prehended  that  a  further  discovery  might  have 
been  made.  They  next  endeavour  to  shevi 
that  there  was  a  correspondence  carried  on  in 
a  private  manner  between  the  two  defendaniL 
In  order  to  shew  this,  they  have  pitKlueed 
several  persons  at  whose  housesihey  have  mrt: 
one  of  them  is  Thomas  Bab ;  he  saith  that  he 
keeps  Peel's  coffee  •  house,  in  Fle«*t-street ;  thai 
the  latter  end  of  Inst  summer  Mr.  Ualee  very 
frequently  came  thither,  and  would  sometimes 
be  there  for  an  hour  or  two ;  that  he  oAsn 
asked  whether  the  minister  l\ad  been  thereto 
ask  for  him,  not  asking  fur  Mr.  Kinnersley  by 
name,  they  knowing  whom  he  meant,  haviDg 
often  seen  them  there  together ;  that  when  Mr. 
Kinnersley  came  in,  they  useil  to  retire  into  a 
private  room,  and  stay  there  together  for  some 
time;  that  one  time  Mr.  Hales  observed  Mr. 
Kinnersley  t^oing  down  Fleet-street,  went  out 
and  went  after  him  ;  that  sometimes  they  went 
away  together,  sometimes  asunder ;  some- 
times one  went  out  at  the  one  door  into  Fleet- 
street,  and  the  other  at  the  other  into  the  |>as* 
sage  to  Fetter- lane.  He  saith,  that  this  their 
resort  to  his  house  was  till  about  a  mouth  be- 
fore that  Mr.  Hales  was  taken  up,  and  was 
then  discontinued.  Mr.  Kinnersley  asking 
him,  whether  ihey  ever  called  for  pen,  ink  and 
paper .^  To  this  he  rejdiei,  No.  Of  the  same 
nature  is  the  evidence  oC  Thomas  Brooks  ;  be 
saith,  that  he  keeps  a  coffee-house  at  Downingn 
street,  in  Westminster;  that  Mr.  Kinnersley 
used  to  come  to  his  house,  send  for  a  porter, 
and  give  him  a  note  to  Mr.  Hales,  who  there- 
upon hath  come  thither  to  him,  and  they  have 
gone  together  by  themselves  to  the  t'urtlier  end 
of  the  room  ;  that  this  they  did  several  times, 
and  stayed  together  sometimes  several  houn. 
He  saith,  that  once  particularly  they  staid 
there  till  it  was  so  dark  that  he  usked  his  ser- 
vant why  he  had  not  carrieil  the  gentlemen  • 
candle;  who  said  that  he  had  carried  them  one, 
but  they  refused  it.  Gentlemen,  they  havn 
then  again  had  resort  to  the  examinatk>n  before 
sir  Richard  Hopkins:    Ihey  have, as  tothii^. 


W] 


Jit  a  Misdemeanor. 


A.  D.  1729. 


[286 


caned  Mr.  Wrigflit.    He  saith,  that  he  was 
pfcacnt  mt  that  eiamination;    and  that  Mr. 
KkuMralcy,  beiajg^  pressed  to  answer  several 
^acstioiis  pat  to  him,  was  in  some  emotion,  and 
■■ii,  I  will  tell  you  all,  give  me  leave ;  seeming^ 
Mms  to  take  time  to  digest  his  thoughts : 
ihiitlicnoiie  Mr.  Blitfbrd  came  up  to  him,  and 
Mttan  bold  his  tongue,  or  he  would  do  him- 
ariff  SMe  miachief,  or  words  to  that  effect. 
Bt  Mag  examined  as  to  some  particulars 
te  Mr.  Kinneraley  affirmed  to  have  passed 
fttfamitr  Richard  Hopkins  and  Mr.  Mitford, 
■tflkalnr  Richard  advised  him  to  take  his 
fiind^  advice,  he  denietb  this,  as  doth  also  sir 
lakwd  Hepkins  himself,  to  whom  Mr.  Kin- 
BCfriej  hereupon  appealed.    He  saith,  that  he 
tUakstkat  thn  interruption  waa  afVer  that  hav- 
iagowMd  the  other  note  to  be  his  hand  -writing, 
ka  kad  deaie<l  this  indorsement  to    be  his, 
air  Richard  thought  it  before,  and  de- 
to  pvevent  his  answering  him  on  that 
Tmt  have  also  pNroduced  Mr.  March, 
liiBr  I&chard  Hopkins's  clerk:  he  gives 
M  oineb  the  same  account.    He  saith,  that 
Mr.  KiBMrslejf  having  owned  the  other  note, 
~  ~    ~  ~  this  indorsement  to  be  his  hand,  sir 
serving  the  likeness  of  the  hand,  ad- 
to  recollect  himself,  and  consider 
vkctber  that  indorsement  was  not  liTs 
I  ISO  as  well  as  the  other  note,  for  that  the 
bwete  very  like;  that  Mr.  Mitford  upon 
■Herpoacd,  and  said,  *  1  would  have  you 
and   not  answer  that  question.'    He 
MB  that  air  Richard  advised  Mr.  Kinnersley 
makehia  friend'a  advice ;  but  on  the  contrary 
■ilh,  that  sir  Richard  was  a  little  warm  and 
hfiikiufleil  him  for  his  iuterposiiiGf,  as  being 
as  iaferrupliun  of  justice.    Tlii*}  is  the  evidence 
Ifcstteth  been  laid  before  you  as  to  this  note, 
kaft  lo  prove  the  forgery  uV  this  note,  and  to 
Aew  Ike  nse  that  was  made  of  it  both  by  Mr. 
Hales  and  Mr.    Kinnersley,  who  is  charged 
with  the  indorsing  this  note  in  order  to  make  it 
carreai.    They  are  called  upon  to  make  their 
(Itfeoce:    Mr.   Hales  stands  mute,  and  saith 
BOCLiDg.    The  facts  bear>ery  hard  upon  him, 
kt  being  supposed  to  procure  these  franks :    it 
Uioicd  him  therefore  to  give  some  account 
kav  be  came  by  this  note.    So  as  to  that  I  ap- 
prehend that  there  is  no  litfficulty,  Mr.  Hales 
BiUag  no  defence.     Bui  the  question  is.  How 
fu  Mr.  Kinneraley  is  proved  to  be  concerned  ? 
liis  counsel  have  endeavoured  to  sol\en  the 
fvirfenee,  or  make  it  not  applicable  to  Mr.  Kin- 
Doiley.    They  own  that  there  was  a  fami- 
liarity between  him  and  3Ir.  Hales:   but  then 
tktjr'aiy ,  that  there  was  also  a  familiarity  be- 
tween Mr.  Hales  and  Mr.  Edwards :   they  say 
teefore,  that  familiarity  with  Mr.  Hales  is  not 
anrimina]  tbinzf.     In  itself  it  is  not:   but  the 
fSHAioa  ia,  whether  a  criiiiinal  use  hath  Item 
■ide  of  it  ?  They  suppose  it  to  be  a  forged  iu- 
IVBement;  but  say,  that  the  same  person  that 
fcvgfd  the DOtemight  alsoforge the  indorsement : 
■ad  tbey  aay,  that  suppokiog  it  to  be  Mr.  Kin- 
Mslaj^  hand- writing,  it  may  be  well  supposed 
^^"^^  "impowd  upon.  And  they  would 


also  have  it  believed,  that  this  is  an  usual  thing 
for  one  person  to  indorse  another's  notes  among 
common  acquaintance.  But  how  were  they 
common  acquaintance,  when  Mr.  Kinnersley 
hath  acknowledgeil  that  he  had  never  seen  Mr. 
Edwards  in  his  life  till  afler  tbisf  They  say^ 
that  it  may  be  the  easier  supposed  that  Mr. 
Kinnersley  did  thus  give  credit  to  this  as  a  true 
note,  and  not  take  it  to  be  a  forgery,  since  Mr. 
Thrup,  who  is  a  man  in  business,  was  imposed 
u|M)n  by  it,  and  lent  400/.  upon  it.  Tbey  have 
called  al^o  aome  evidence,  not  directly  to  con* 
trovert  the  fact,  but  to  contradict  some  thii^ 
given  in  evidence,  relating  to  the  examination 
taken  before  sir  Richard  Hopkins.  To  tliia 
purpose  they  have  called  Mr.  John-Hayes.  He 
saith,  that  whether  this  indoraemeiit  was  bia 
writing  was  not  the  question  proposed  to  Mr. 
Kinnersley,  when  Mr.  Mitford  interposed,  he 
having  before  denied  that ;  but  that  there  waa 
another  question,  that  waa  then  proposed  to 
him  to  answer ;  whether  and  how  often  he  had 
been  to  visit  Mr.  Hales  in  Newgate  P  And  he 
saith,  that  as  to  that  it  was  that  Mr.  Mitford 
interposed,  and  advised  him  not  to  anawer  to 
that  question.  They  have  called  also  Mr. 
Ward,  who  was  present  at  the  same  time,  and 
gives  you  much  the  same  account.  He  ap- 
prehends that  there  was  a  dispute  about  the 
minutes  that  were  taken  of  what  had  passed, 
and  that  Mr.  Kinnersley  was  in  a  passion,  and 
desired  to  be  examined  in  the  court  of  aiders 
meu ;  and  that  then  Mr.  Mitford  interposed, 
and  advised  him  not  to  desire  this  \  that  the  in- 
terruption was  upon  that  extravagant  offer  of 
his,  and  that  upon  that  possibly  sir  Richard 
might  advise  hira  to  take  his  Irieud's  advice, 
that  is,  to  be  clear  and  not  so  rash  in  answer- 
ing the  Questions  put  to  him.  Mr.  Kinnersley 
himself  hath  laid  Wore  you  what  he  thought 
proper.  The  witnesses  that  were  called  (you 
have  doubtless  observed)  as  to  that  examma- 
tion,  both  of  them  say,  that  he  had  denied  it 
before  the  interposure.  Mr.  Kinnersley  speaks 
himself  and  seems  to  say,  that  he  doth  not 
know  but  that  it  may  be  his  hand,  though  how 
it  came  to  be  obtained  he  cannot  well  tell.  In- 
deed it  is  an  extraordinary  thing  how  his  name 
should  be  obtained  on  the  back  of  a  note  signed 
by  Mr.  Edwards.  Gentlemen,  if  any  other 
particulars,  material  for  their  defence,  have 
slipped  me,  you  have  heard  them,  and  they 
oii'jrht  to  have  their  weight.  The  question  is, 
Whether  and  how  far  he  is  a  party  in  this 
transactiou  ?  If  he  be  a  party,  thoujjh  he  doth 
but  the  one  part,  he  is  cquall  v  gudty :  every 
man  that  takes  part  of  these  things  is  equally 
guilty  of  the  whole,  and  stands  undefended.* 
The  note  then  must  be  taken  for  a  forged  note, 
and  probably  in  the  manner  that  they  have 
shewn.  The  thing  in  question  is.  How  far 
Mr.  Kinnersley  is  concernc<l  ?  The  name  Kin- 
nersley, you  see,  is  upon  it :  if  his  name  bail 
not  been  upon  it,  the  note  had  been  of  no  avail  ; 
for  there  bavin;;  been  no  transactions  between 

*  Sou  East^s  PI,  of  the  Cr.  c.  19,  §  59. 


SS7J 


3  GEORGE  II. 


Trial  of  WiUiamHaUSf 


[888 


them,  lie  could  not  have  deminiled  the  monej. 
Bat  the  maia  bitsinem  was  to  indorse  it,  that 
other  peraonf  that  knew  not  but  there  vaig\xX 
have  been  such  transactions  between  them, 
might  credit  it,  and  lend  money  uiion  it.  Whe- 
ther the  proof  that  is  given  you  that  tliis  is  his 
hand,  couoUmI  with  his  own  apprehension  that 
it  is  very  like  his  hand,  will  satisfy  you  of  it, 

2 on  must  judge.  If  ^ou  judge  that  it  is  his 
and,  the  next  Question  before  you  will  be, 
bow  far  it  couM  oe  put  to  a  note  of  Mr.  Ed- 
wards's? It  is  plain  that  there  could  be  no 
foundation  for  it :  if  then  you  think  it  satis* 
fhctorily  proved  that  bis  hand  was  put  on  the 
bac^  ot  this  paper  by  hira,  knowing  it  to  be  a 
note  of  such  value,  and  there  be  no  reason 
given  you  for  it,  you  must  look  on  him  as  a 
party ;  but  if  you  suppose  it  put  to  the  back  of 
Ibe  note  without  his  privity,  in  that  view  of  the 
thing  yoa  must  acquit  him. 

Jury  called  over. 

Clerk.    Are  yon  all  agreed  in  your  verdict  F 

Jury.    Agreed. 

Ckrk,    Who  shall  speak  for  yoB  ? 

Jury,    Our  foreman. 

Clerk,  How  say  you?  Is  William  Hales 
Guilty  of  the  misdemeanor  wherewith  he  stanils 
charged,  in  forging  a  note  for  1,650/.  tod  in- 
iloruug  the  same,  and  in  publishing  the  same 
as  a  true  note  and  indorsement,  knowing  it  to 
ba  so  forged  and  counterfeited,  or  Not  Guilty  P 

Foreman.    Guilty. 

Clerk.  How  say  you,  Is  Tliomai  Kinners- 
ley,  &c. 

Fweman.    Guilty. 


Mr.  Strange,  My  lord,  we  desire  that  Mr. 
Kinnersley  may  be  now  committed. 

Judge  "Rtynoldi,  Whence  was  he  brougfal 
hither  P 

Mr.  Strange.    From  the  Compter. 

Judge  Reynolds.  Well,  now  that  be  ii  co» 
victed,  he  must  l»e  committed. 

Kinnenley.     Whither,  my  lord? 

Judge  R^^lds.    To  Newgate. 

Kinnersley,  But,  my  lord,  there  arc  tm 
writs  against  me  which  fix  me  to  the  Gomplv. 

Judge  Reynolds.  They  will  follow  yea 
doubtless  to  Newgate. 

Kinnersley.  But,  my  lord,  the  order  of  Iba 
lord  ehiefjustice  was,  that  I  shoukl  he  oaa* 
mitted  to  the  Compter  till  discharged. 

Judge  Reynolds,  Your  being  ordered  Id 
Newgate,  is  a  discbarge  from  the  Compter. 

Kinnersley.  I  bless  God  that  I  go  back  ui- 
nocent  of  the  charge  against  me. 

Judge  Reynolds.  Jf  yon  do  in  your  om 
apprehension,  it  is  not  so  in  the  appeebenain 
of  the  jury. 

Kinnersley.  My  lord,  I  thought  I  bai 
cleared  that  matter.  If  Mr.  Hales  bad  broogbl 
me  that  note  to  sign,  I  believe  that  I  ahnlA 
have  signed  it:  hut  I  should  not  have  done  il^ 
if  1  had  known  that  Mr.  Edwards's  nuDe  wn 
fraudulently  obtained  to  it.  May  I  oever  sea 
the  faoe  of  Almighty  God,  if  1  was  ever  privTlt 
any  of  Mr.Hales'sfoigerieB!  IfyoarlMdnip 
please  to  direct  me  to  Newgate,  I  derirnll 
may  be  immediately,  for  I  am  ill,  bavug  baa 
here  so  long. 

Judge  Reynolds.  It  will  be  preaentlj,  fti 
the  Court  is  going  to  aiyocirn. 


477.  The  Trial  of  Wilmam  Hales,*  for  frauduleatly  forging  and 
counterfeiting  a  Writing,  purporting  to  be  a  Promissory  Note 
of  Samuel  Echrards,  esq.  to  Samuel  Lee,  for  Four  Thousand 
Seven  Hundred  Pounds:  3  Glorgg:  II.  a.  d.  1729. 


The  Jury  called  over  aud  sworn. 

Clerk.  0Y£Z,  Oyez.  If  ^y  one  can 
inform,  dec. 

Imdictmbnt. 

Gentlemenof  the  Jury,  William  Hales  stands 
indicted  by  the  name  ol  William  Hales,  of  Lon- 
don, late  goldsmith  ;  for  that  on  the  1st  day  of 
August,  m  the  8d  year  of  bis  majesty's  reign, 
be  did  fraudulently  forge  and  counterfeit  a 
writing,  purportinfjp  to  be  a  promissory  note,  in 
these  woiils  followmg, 

«  March  30,  1788. 
"  Six  months  after  date,  1  promise  to  pay  to 
Samuel  Lee,  or  hb  order,  the  sum  of  four  thou- 
aaod  seten  hundred  pounds,  for  y«  value  re- 
eeifed,  Samubl  Edwards." 

*  See  Ibe  prwedug  CaaasL 


and  that  he  did  knowingly  and  wittingly  pobUab 
the  same  as  a  true  note,  knowing  the  same  to 
be  so  forged  and  counterfeited. 

9/lr.  Strange.  May  it  please  your  kwdabip, 
and  you  gentlemen  of  the  jury,  this  is  an  in- 
dictment ag^nst  Nr.  William  Hales,  for  forg- 
ing a  note  in  the  name  of  Samuel  Edwam, 
esq.  and  publishing  the  same.  It  sets  forth, 
that  on  the  iRt  of  August,  in  the  2d  year  of  bin 
majesty's  reign,  he  forged  a  note  in  these  H'Onta 
following,  &c. 

And  it  further  sets  forth,  that  the  defenihmt 

Kublished  the  said  forged  note  as  a  true  note  of 
ir.  Edwards's,  knowiug  the  same  to  be  forged 
and  couutcrfHted. 

Sen.  Whitaker.  May  it  please  your  lord- 
ship,  1  am  counsel' in  this  cause  for  the  king. 
Gentlemen,  this  matter  is  of  the  same  naturo 
with  some  former  indictments :  I  shall  there- 
fiwe  take  up  but  little  of  yoor  line.    It 


8S9]  Jor  a  Misdemeanor.  A.  D.  1729.  [S90 

pnrt,  gratlanen,  to  ns,  that  this  is  the  effect  should  rome  upon  yon  for  the  affirminc^  of  thii 

nf  ftinie  firmnk  ooTers,  that  Mr.   Hales  hath  jiid<rineiit.    Upon  this  sir  Diby  Lake  was  io- 

frudalditly  obtained  of  Mr.  Edwards.     1  need  diiced  to  be  his  sccurir v ;  thus  he  came  to  haVe 

Ml  DOW  acquaint  you,  that  Mr.  Edwards  did  this  note  delivered  to  him.    Gentlemen,  when 

ht  some  time  induliire  Mr.  Hales  with  frank  we  shew  you,  as  we  must,  it  bciii^  afresh  case, 

coTcn,  which  Mr.  Ilalea  pretended  that  they  how  he  bad  fVanks  from  Mr.  Edwards,  theme- 

vere  lioi^ed  for  aenilinf|r  news  into  the  coun-  thofl  wherein  he  hath  made  this  use  thereof, 

trf .  This  note,  jg^ntlemen,  is  even  a  i^rosser  and  itien  that  this  note  was  thus  delivered  to 

fn^i  than  the  utlicrs  can  be  Rup|K)sed  to  be.  sir  fiihy  Lake ;    and  you  have  considered  the 

Bmeasam  of  4,700/.  which  Mr.  Edwards  is  several  circumstances  of  the  case,  it  will  appear 

soffHcd  tu  promise  to  pay  within  six  months  both  that  this  is  a  for^^ed  note,  and  hy  whom  it 

ifllefdile  to  Samuel  Lee.    This  Lee  we  have  %vas  for;Ted ;  that  Mr.  Hales  was  the  person  on 

into  the  chanictcr  of.     He  is  one  that  whr>m  it  must  be  charfrcd. 


l0 

Ihii  ^ ^ ^ 

for  4,700/.     Gentlemen,  when' you  come  in  betwet^n  that  and  liie  r;   and  that  there  not 

to  kiok  upon  this  note,  you  will  see  on  it  the  beini;'  sufficient    room,  therefore   the    word 

pUnestmarka  of  fbri^y  that  can  be.     When  '  pound'  is  crowded  in,  in  n  narrow  manner, 

ytu  ooroe  to  look  upon  it,  you  will  plainly  see  cuid  then  fullows  the j/i  so  that  it  is  not  possible  to 

thai   ■  ffree  Samuel  Edwards'  still    remains  s!>ppn::p  th it  i Cany 7;entlemnn  had  wrote  it  be- 

fiyhlc    There  is  the  double  /  which  Air.  fore  the  //  u  ns  wrote,  he  v.  ould  have  crowded 

Edwards    jfenerally    useth,  which  we   shall  tiic  word  <  pound'  into  no  narrow  a  room.    Bat 

yrsfe  br  witness.  And  then  between  the  j^*and  there  was  tliou  a  necessity  for  it. 

Ihtrtbereisano  struck  in,  which  you  will  T/iomai   Maddox,  Anne  Clarke,  and  Mr. 

IS  not  the  same  wntmrr  witli  ihe^  Booth,  were  called,  sworn,  and  deposed  as  be- 

le  with*  Samuel  Edwards.'  i\nd  then  fore ;  and  the  note  ol  direcliona  was  again  read, 

out  the  v«  you  will  see  the  two  ce  are  m*^  o  •  ^,  ^„«,„ 

i..»«.toiiimkeavwithastrokeatthcbottom  «     «/        -    ni  '       * ^^^t «..  iw  «n*. 

^«i^  -  u-*  *u-*  -.*'ii  *!.*-.                  •  -Li  Mr.  Slranee.   Please  to  look  on  that  note, 

?  ^rS^   L!  h  ■•?"*  P'^'y  """  *'<"«  Mr.  Kdwar.ls'8 ? 

F  ^SSS^.  !^1T.l"itiT  iT.if^"  Spiccr.  The  name  i.  bis,  the  ^and  the  r  i. 

i  J?!"i*^  ''*J"'v ''"  M?"*  "'^""'^'  also  hi"-    The  o  seems  no    to  Kc  of  the  same 

Inn  *  value  received.   You  will  see  a  con-  •  i         i  •      zv          ■           j  j  •       rm 

j.^u  i_^ii    -.«/*!  «••*  I.*  I     \  mk,  and  la  afterwards  crowded  m.    The  via 

depth  beneath,  and  that  it  must  be  cut  uq*  i,:g 


•ffft»  »on>ethiDg  ei«>.    How  it  was,  it  «.»-        „,  g^  y^,^^^^  -^  M,  Edwards's  way 

CBis  Mr.  Hales  to  shew.    As  to  the  method  off|.a»j,-  ^a 

vbcniDthis  came  to  be  discovered,  it  issuHi-         o  •       W?^^^  a .  i  T?.i.»<a»i.  »  c  Vm^^  u^ 

^:^^^»  II    -.     .u  «  «i  •   I    1 1  -  •       1        iSp:cfr,  *  Free  Samuel  Luwarus.    *  rrec  he 

Ci6Btt«tell  vou,  that  this  had  been  occasioned  ..«./ii., ...  •»_    -.i      a- 

I    ..    J-      •  c  *     r         I  ■     *i  usurilly  writes  With  a //. 

t|r  lae  discovery  of  a  note  forafcd  ui  the  name        itT-  c/  rh- 1*^      .  «««-  !,««.«  u:«*  :- 

Jr  If-   r«u-   -    -  I       ■      -    I  '.         -Mr.  Stranfre:   Did  vou  ever  know  nim  m 

•f  Jir,  uibsM>n,  an  apprehension  and  commit-  r  ^  i  -  i  I'li  1 1  r     i  vj 

_^.  ^^  •,     -I*  ,       '^'i    ^  ,, .  t'  frankiiirif,  make  use  oi  the  word  HrankV 

■eotof  Mr.  Hales;   that  this  jjavc  occasion        o  -^    •^     ^i-- 

for  several  persons  to  enquire  into  the  vpfiditv        \tl  ^c#   '  **' '  '  ii«  -  i     ^  i  « «^..  k*.«»  •« 

^.i  ' I  •  I.  .1        I    I  I  i-    -         ^If-  Strange.    How  lonff  have  you  been  ac- 

ihoje  notes  which  they  hid  received  irom  n„„;n,,.i  „:,f  h;^  v  *  ^ 

Nr.  Hales.     As 

!!I!!1  ^^^^  !!V*  !r".  T'^^rT  T'''  "*'''T       ^'^-  SUa^wx,    mx  vou  ever  know  him  any 

T^Z,  ^»\  '^^l^^**  »^.c^'"«  *"  ^"  discovered,  „.,,.^^  ,,,nn...,w..i  ..:...  s  ,.«.,nl  1^^  ?  ' 

thit  \Ir.  Hales  had 

lbi»  promissory 

SubqpI   Edwards 

BMMllhs    after  date  uf  i^aumiri  Ajt'i:,    lur  ^^HJUi.  Vi       t«,  t-*        ^      jI  :    i.    j.!..*  U-.;^-.  *« 

1. .1.        ^    -^    *u  *  •*  ^1     1  Mr.  Slianiic.    Uo  vou  think,  that  beinff  ac- 

h.»ed   OMrniHyJUke:  Mr  Hales  had  been  J,    ,,,,   ,,^,,^  ,.  -f  ,,,„^  ,   j  ^     '  J 

i»  k*e!i  on  the  evil  ilay  as  loncf  a»  possible,  it        c  x-       w     1 1   r       «•    «  r  ..k<«..m 

.„     •  .  »   "^   -  1   »     *•  I  S..:rcr.  i  cs.  Sir.  i  bolM*vo  tiiat  I  snoulu. 

wu  necessary  to  procure  some  substantial  per-         ,■      ...  tvi  «*   r -4i         <.«o»n<.  i..»« 

.^ .    I      I-  -ir     I-—       :- ivi     T    I  '  '*«r.  i^trntice.    What  lurther  reasons  nave 

mui  be  bail  for  him ;  sir  Biby  Lake  was  np-       ^    .    •   ,•    ^.i-       ..^i    ■      ..,„i 

^i;..     .    .  -  i_.  J.- "i        .1  'i*  you  to  believe  this  not  tone  his  note; 

pM  to,  bemsf  a  very  subslaiflial  f'entleinnn.  It  -^   c  ■         i        .    „     i    i-       #i  •   *..  k<«i.:.  •.rm«« 

L_-  tv^-.    r  o  _^     -    ir    t1 -i      ii  S-yurr.  I  can  never  hfMievr  this  t'>  be  liis  note, 

W^on.Wraof  firwr  an.Uoracon«.lcra^^^  for 'he  never  j;ir,^  a..v  promissory  ..-.ts  for 

•i,  that  be  was  dwire.1  to  be  bail  for  Mr.  ^.        „„^  „     •'„,„^  ^^  ^„  '  „i„,„,„  '„^i^      ^,^^ 

tulffi,  he  made  a  scruple,  and  rriused  it  at       •    i'       .        a   i  ■   „.  «  i  «..  i 

K.^    —  I     —La    •    I.  ii*     «     •*   ■»!     II  I  whole  note  with  his  oivn  liantl. 
WM:  at  length  to  induce  hirn  to  it,  wlr.  Hales 

•id  to  him.  Sir,  you  bhall  be  at  no  raaniier  of  ^'^  ^^'h  '-«'"<^  s-.v  irn. 

HA;    I  have  a  pronii^sory  note  for  4,700/.        Srrj.  Whiftilicr,  Sir,  pray  j-Ict-:^  to  jjive  ui 

•hicb  is  made  by  Mr.  E'hvjircls,  who  'n  a  sub-  an  arrount,.whpM  you  ^^-..w  il»it  ivi.r  Tr ;«.,  !:;")i 

Mftatial  man,  payable  nithin  a'lx  months::  this  wliat  fM*cas>on  ii  wa^  It  >  y^'  '.  l'»  y)'A,  uu-i  l>y 

Will  be  an  ample  lecurit^',  if  an  execution  ^thoin  it  \tas  dcUvLTcdtoymi  ? 

Vt>L.  XA II.  U 


•91]  S-GEORGB IL 

,  Sir  Biby  I^ke,  About  tiuatimtWeWemonih 
llr,  Williim  Hi}f»  sent  Mr.  Kiaaenle;  to  me 
al  mv  huuie  iu  Croiby-aifuaK,  wbo  UtU  me 
ibat  Mr.  Hilei  wu  arreued  upno  ■cconnt  uf 
abuaJgi^en  bv  him,  anJ  Blr.  Kobert  Hiles, 
to  Dr.  ftlnpletoii  at  CaoluHiury ;  tbat  the 
Doctor  hBTiog  arreateJ  Mr.  William  Halei,  be 
ilMired  Ibat  I  woutil  be  bail  tor  bin).  I  deaired 
Hr.  KiriDeriley  to  roeei  uie  Id  iheereniDg: 
we  tiien  weot  to  the  judge*  cbamben,  and 
give  bail  to  the  action.  I  tbought,  that  there 
feiug  no  difficuiiT  in  the  gentleinaD'a  appear- 
ance,  there  would  be  no  damage  in  doing  that 
ibr  a  (rinid.  Afterwards  Mr.  Halea  camehim- 
■eiftome,  and  desired  me  that  I  would  be 
bail  again  far  him.  I  lolJ  bim  that  it  waa 
Mmewliat  eztraorditian' ;  hot  that  however  I 
would  meet  him  at  Mr.  Tumer'aBt  Staples-iiia, 
b>  CDiiaider  what  to  do.  He  came  to  me  there 
aboat  four  or  fire,  and  brought  a  gentleman 
with  him,  who  be  told  me  waa  bit  attorney. 
Atfint,  he  told  me  not:  but  afterwards,  we 
imdeniaod  that  it  was  to  ■  Writ  of  Error  Ibat 
I  wai  deaired  to  be  put  iti  bail.  I  waa  then 
tirid  by  Mr.  Turner,  that  if  I  waa  bail  to  tliat,  I 
muM  pay  the  money  if  they  did  not.  Upon 
thb  I  totd  Mr.  Halet  tliat  1  cared  not  to  be  hail 
In  tuch  a  matter  ai  this,  unless  he  would  give 
me  Kund  aecurrly.  He  told  me  that  he  waa 
^iw  to  Peet'i  coffee- honee,  desired  that  I 
would  consider  of  it,  and  come  to  him  again.  I 
alaid  to  consult  Mr.  Ttrmer,  and  toM  him  that  J 
wovid  not  be  bail  except  Mr.  Halef  would  giTe 
«M  good  security.  I  theo  went  to  Pecl'i 
coffeehouse,  and  there  found  Hr,  Hales  and 
Mr.  Kinnersley  together.  1  took  Mr.  Hales 
to  another  part  of  the  room,  and  told  him,  that 
I  wonld  not  enJanger  myself  and  my  family 
W  far  as  tn  engage  for  such  a  sum,  it  being 
abuul  1,500^.  unless  be  would  give  me  good 
■ecurity.  Upon  this  he  put  His  hand  in  his 
po«^ket,  took  out  his  pocket  booh,  and  took  out 
of  it  tbii  note.  He  looked  upon  i1,  and  said, 
Ibat  it  was  a  promissory  note  Ibr  four  thousand 
and  <jdd  pounds,  .ini)  vras  |inyable  within  two 
or  three  months  afler.  Hn  put  it  into  my 
iMod :  1  looked  upon  it,  and  thought  it  was 
»ery  good  secnrily  to  me  for  siiph  a  sum.  Hf 
desired  that  I  would  kevp  it  iu  my  own  hand 
till  the  raooey  that  1  whs  security  for  was  paid ; 
but  said,  that  he  would  jmy  tho  money  tontf 
IbefcrelcouM  hecalled  upon-.  1  thought  I  had 
■officient  satisfaction,  and  went  thereupon  be- 
ftee  Ibe  Isnl  chief-iuttice  lluymond,  and  gave 
fcul  to  the  Writ  of  Error. 

Nei).  WkUaktr.  Sir,  I  would  desire  vou  to 
look  oo  the  notr,  and  on  the  twck  of  ft,  and 
tell  us  whether  it  bath  had  any  alteration  f 

Sir  Biby  Lake.  None,  Hir,  tliat  I  know  of. 
Bnt  I  must  give  yon  s  particular  account  of 
•tie  thing.  It  was  nut  ail  the  lime  in  thesanio 
cusliHly.  Before  1  came  there,  my  servant 
went  and  wailed  for  me  witli  my  hone  in  Hoi- 
boni,  1  beinz  going  out  of  town.  Going  tbere- 
^re  to  Air.  Turner's,  1  desired  bim  to  lay  it  by 
Ibr  no  in  his  dnwcr,  where  he  hath  otbo- 
fi|Mra  of  mine.    Acoordinglj  hedidlajr  itop; 


Trial  of  WmamHaUi, 

and  from  that  time  it  waa  (In,, 
Turner's  cuMody,  till  after  the  time  tj 
Halea  was  taken  up.    When  that  ha 

Harleof  the  million  bank  tent  a 

thereof.  Upon  that,  when  I  came  in. 
to  Mr.  Harle,  and  told  him  Ibat  I  had 
note  of  Mr.  Eilwarda's  in  my  hand ;  a 
I)  hearing  that  you  have  a  auapiclon  I 
.hat  is  in  your  bands  is  a  bad  note. 
.  reason  to  denre  yon  to  go  to  !i 
wards,  and  acquaint  bim,  that  1  bare 
note  iu  Mr.  Turner's  custody,  who  is 
Derbyshire.  All  thati  could  then  do, 
denre  Mr.  Turner's  clerk  to  send  to 
the  ker>  that  we  might  take  oat  the  I 
shew  It.  The  clerk  did  so;  and  afb 
time  bad  the  key  tent  him,  took  out  t 
and  I  desired  him  to  carry  it  to  Mr.  E 
Jt  was  the  same  day  that  the  note  beca 

Sir.  Turner  swoni. 

Serj.  Whilaker.  Mr.  Turner,  pray  [ 
kwk  upon  that  note,  and  give  us  an 
when  you  tint  saw  it  ? 

Turner.  1  believe  it  was  one  day  io 
Ifinniog  of  July  last,  about  five  or  sii 
ID  the  afleraooo.'  I  cannot  be  particul 
the  day,  bnt  I  believe  that  it  was  the  si 
that  sir  Biby  Lake  gave  bail  Iu  the 
Error.  He  then  brought  me  the  noti 
by  for  him.  1  verily  bdieve  thia  to 
same  note. 

8erj.  Whitaker.  Hath  it  had  any  al 

J^rner.  No,  Sir.  He  desired  me  I 
for  him  in  a  drawer,  where  I  had  othe 
papen:  accordingly  I  did:  I  new 
town  in  Au^^uDi.  AlUrwards  my  cli 
me  word,  tliat  sir  Uiby  L^ke  desireij 
would  send  up  the  key  of  the  drawers, 
to  his  notes  being  taken  out.  Upon  tli: 
up  the  key  to  my  clerk,  direclea  him  i 
drawer  the  noti.>  was,  desired  tliat  h 
take  il  out,  and  carry  it  to  sir  Biby  Lai 

Mr.  Jlfure  iwom. 

yir. Strange.  Dujou  remember.  Sir 
reuejied  a  key  from  Mr.  Turner? 

More.  Yes,  Sir. 

Mr.  Strange  Did  you  iheimpon  I 
note  in  the  druwer  ? 

Jlforr.  Yes,  Sir;  in  thedrawer  ofth 

Blr,  Strangt.  Did  you  make  any  all 
in  itP 

Mart,  No,  Sir;  I  took  il  out,  and  c 
to  Mr.  Edwards. 

Air.  StraHgt.  Hr.  Spirpr,  you  are  aci 
nith  iMr.  Edwards'K  nay  of  dealing. 

be  mves  au        '  ■'  '     - 

whole  note  f 

Sputr.  Yes, Sir;  [  never  knew  h 
any  bnl  tluit  he  wrote  the  whole  note. 

Hr.  Slienge.  Doth  he  use  to  givo  t 
lime? — Spicer,  No,  Sir,  never. 

Mr.  Strange.  Aly  brd,  we  DOW  da 
Uw  note  may  be  read. 


S9S]  for  a  Misdemeanor, 

Note  read.  •'  March  30,  1738. 

■*  Sis  months  after  date,  1  promiie  to  pay  lo 
SuMd  Lee,  or  bis  order,  the  sum  of  four 
~  ae? en  huodrcd  miuDds,  fibr  tlie?alue 

Samuel  Edwards." 

ladoraed,  «<  Samuel  Lee." 

Vr.  Strange.  You  will  obserre,  {jfentletneo, 
Aa  vai  *  ffree'  is  legible  atilt,  and  ubMir? e  how 
Ihiivd  *  poQiids'  is  crowded  in. 

Blr.  Bird  sworn. 

fci  Wkiiaker.  Sir,  do  yoa  know  Mr.  Sa- 
■ad  Lea  T-^Bird.  Yes,  Sir. 

Sari.  WkUuker.  What  is  he  ? 

Bird,  A  sea  faring  man. 

Bcri.  WkUoker.  Do  you  koow  his  wife  ? 

Bird.  Ytf,  Sir. 

Sen.  Wkilaker,  Did  she  nurse  a  child  for 
air.  Hales? 

Bird.  Yn,  Sir ;  two  for  se? eral  years. 

Soj.  Wkiieker.  Is  he  a  man  of  worth  ? 

Bird,  No,  Sir ;  be  is  not  worth  5/.  in  the 
wU. 

fai.  Rah^.  What  say  vou  to  this,  Mr. 
Bihif  You  see  that  they  fiaveffifen  an  ac- 
>  of  the  method  that  you  took  to  procure 
^ers.    This  note  they  say,  that  you 
as  a  true  note,  how  should  it  come 
that  such  a  |ioor  |M*rson  as  tliis  Lee  is 
Kse  OTer  such  a  note  to  you  ? 

Bala.  Mr.  Lee  gave  it  mc,  there  being 
MaicB  due  to  me. 

8tij.  Kdby.  If  you  can  prove  any  transac- 
fm  WtwecD  yoa  and  that  Lee,  to  induce  the 
jvytobelieTe  that  it  was  given  you  upon  that 
oaaderation,  it  will  he  pro|ier  now  to  do  it. 
Rifci   He  is  gone  abroad. 

Hej.  Raby,  Is  there  any  person  that  can  be 
witDcss  of  any  such  transaction  ? 

Btia.  No,  Sir. 

Hcr|.  Raby.  Gentlemen  of  the  jury,  William 
flalft  of  London,  late  proldsntith,  'stands  in- 
^Ktedfor  forging  a  note  for  4JU0/.  payable 
vithin  six  months  after  date  to  Samuel* Lee, 
oropler,  in  the  name  of  Samuel  Kdwonis,  esq. 
lad  for  publishing  the  same  as  a  true  note. 
Yoa  see,  gentlemen,  that  there  have  been 
feneral  witnesses  produced  to  shew  how  he  got 
pQsnsioo  of  frank  covers,  on  pretence  of 
•ending  news  into  the  country ;  and  that  he 
Mtti  a  paper  of  directions  for  some,  which  di- 
Rctioos  were  very  shorl,  ami  so  convenient  fur 
iW  writing  in  the  intermediate  space  over  the 
time,  such  a  note  as  this.  And  they  have 
■«oro  that  these  directions  are  his  hand, 
vkicb  were  sent  over  by  his  servant  to  Mr. 
Edwards  for  franks.  Now  to  shew  you  that 
this  note  wss  published  by  this  man  as  a  true 
SMe,  and  that  he  is  guilty  hereof,  sir  Biby 

lake  hath   appeared.      He  tells    you,  that 

Acre  were  two  several  applications  to   him 

^  W  bail  for  Mr.  Hales ;  thaf  he  complied 

MIy  with  the  one,  but  the  other  he  made 

*ac  icniple  of,  because  it  was  more  dan- 

(Kaos ;  it  beioff  to  a  Writ  of  Error,  and  for 

ite  1,500(.  He  was  therefore  more  cautious. 


A.  D.  17«).  [204 

and  would  not  do  it  without  security.  He  tells 
you,  that  upon  this,  this  note  was  offered  and 
deposited  in  his  hands  by  the  prisoner.  This, 
if  you  are  satisfied  of  it,  iixes  the  note  uptm 
the  prisoner.  Jt  appears  hereby,  that  it  «i*as 
in  the  hands  of  the  prisouer.  He  cannot  shew 
you  how  he  came  by  it :  that  then  is  a  strong 
proof  to  fix  the  charge  in  this  indictment  upon 
nim.  Where  a  forged  note  is  found  in  a  per- 
son's possessicm,  and  it  appears  that  he  offcretl 
it  as  a  true  one,  and  cannot  give  an  •^count 
how  he  came  by  it,  that  fixeth  the  charge  of 
forging  it  upon  him.  This  note  was  published 
in  the  city  of  London,  and  therefore  the  forgery 
in  the  indictment  is  fixed  there  :  for  it  is  im- 
possible to  know  certiiinly  where  a  note  is 
forged,  since  no  one  calls  evidence  to  see  him 
forge  a  note.  Thus  it  appears  to  have  been  in 
his  custody,  and  it  cannot  otherwise  be  proved. 
Other  witnesses  have  been  produced,  to  shevr 
that  the  note  hath  uot  been  altered  since  it  was' 
delivered  by  him.  Mr.  Turner  tells  you,  that 
he  received' it  from  sir  Bibv  Lake  the  day  that 
he  receive<l  it  from  Mr.  llales,  and  laid  *  it  by 
lor  him  in  his  drawer;  so  that  from  the  time 
that  it  was  published,  it  continueth  in  the  same 
state  that  it  then  vi'as.  Other  circumstances 
have  been  laid  before  you,  as  the  manner  of 
Mr.  Edwards's  making  out  any  notes.  He 
doth  not  give  out  any  promissory  note  made 
for  time,  nor  doth  he  ever  give  out  any  what- 
soever but  such  as  are  all  of  his  own  hand- 
writing. Another  circumstance  that  liath  been 
laid  botbre  you,  relates  to  the  person  to  \^  hom 
this  note  is  made  payable.  It  looks  like  a  con- 
trivance to  have  it  ull  in  his  own  management, 
in  the  hands  of  his  servant,  ami  within  his  own 
reach  ;  that  this  note  should  l>e  mnde  payable 
to  a  poor  man,  whose  wile  was  nurse  to  Mr, 
llales's  children,  and  the  witnfss  l»clieves  him 
not  to  be  worth  6/.  in  the  world.  How  should 
he  be  entitled  to  this  hill  for  such  a  sum,  which 
he  might  have  indorsed  to  any  other  person? 
No  one  sure  would  trust  such  a  note  with  such 
a  person.  He  could  not  lie  possessed  of  it  iu 
his  own  ri;;ht,  and  no  otlu*r  person  would  en- 
trust a  man,  not  worth  5/.  with  a  note  of  this 
value.  This  circuiiistunce  tliey  oifer  to  your 
consideration  :  an<l  tlioy  take  notice  of  some 
letters  which  shew  that  there  was  originally 

*  ffircp,'  wiiich  is  now  turned  into  *for  the,*  be- 
fore '  value  rccfived.'     Ii  appears  that  it  wa^ 

*  ffrcc  Satniicl  Edwards:'  and  it  i<)  almost  legi- 
ble notwithstandini;  the  alteration   that   iiath 

a  ■  ■       ■  ■ 

In  en  mnde.  He  Imih  suid  nothing  in  his  de- 
fence to  shew  how  he  came  hy  that  note.  He 
saith  that  l^e  ^nve  it  him.  Is  it  likely  that  a 
man  not  worth  51.  in  the  world  should  (five 
out  such  a  note  as  this  1'  1'lioii;r|i  there  is 
no  direct  evidence  of  his  for^iiii;  it,  that  makes 
no  alteiation :  if  he  directed  it  iu  he  done,  it  is 
the  same  thing  as  if  he  did  it  himself;  nor 
doth  it  appear  that  any  but  liiin«4*lf  is  concern- 
ed therein.  He  haviiifir  |iublished  it,  is  ifuilty 
not  only  of  the  piib:icaiioii,  bui  ot'  the  forging 
of  it :  if  you  believe  it  to  l)e  a  forged  note,  ho 
is  guilty  of  the  forgery.    His  publikhing  of  the 


295J  S  GEORGE  11. 

note  is  a  safficient  evidence  of  it.  If  a  maD 
had  receiFcd  such  a  note,  be  would  readily  say, 
I  received  it  of  such  a  person  on  such  an  occa- 
sioD :  but  there  hath  been  no  evidence  of  this 
nature  given.  If  you  ask  a  man,  how  he  came 
b^  this  or  that  things,  he  saith  another  gave  it 
iiiin :  that  may  be  said  in  every  crimiual  case ; 
it  is  often  said,  but  never  regarded  except 
proved.  You  are  tlicn  to  consider  all 
these  circumstances,  and  to  judge  thereupon 
whether  it  is  a  forged  note ;  whether  it  is 
likely  that  Lee  should  have  a  note  of  this 
value,  and  that  there  should  be  any  reason  for 
his  delivering  such  a  note?  There  has  been 
no  pretence  of  any  transactions  between  this 
Lee  and  Mr.  Edwards,  nor  any  colour  of  proof 
on  what  consideration  the  gentleman  should 
H'rite  such  a  note  payable  to  such  a  man,  and 
give  it  him.  Gentlemen,  here  is  as  full  and 
plain  proof  as  can  be  expected,  if  the  evidence 
swear  true ;  so  I  leave  it  to  you. 

Clerk.    Are  you  all  agreed  in  your  verdict  ? 

Jurif.  Agreed. 

Clerk.  VYho  shall  speak  for  you  ? 

Jury.  Our  foreman. 

Clerk,  How  say  you,  is  William  Hales 
Guilty  of  the  misdemeanour  whereof  he  stands 
indicted  in  forging  a  uutc  in  the  name  o\'  Sa- 
muel Edwards,  esq.  f(»r  4,700/.  and  pullishing 
the  same,  or  Not  Guiltv  ^—Foreman.  Guilty. 

Serj.  ]VJiilaker.  Af\'  lord,  the  note  being 
found  to  be  forged,  we  desire  that  sir  Biby 
Lake  may  deliver  it  to  Mr.  Edwards. 

Sir  William  'Thompson,  That  is  but  common 
justice. 

Mr.  Sf range.  My  lord,  there  is  another  in- 
dictment :  but  we  will  not  trouble  your  lord- 
ship with  thut ;  thercfurc  the  jury  may  be  dis- 
charged. 

Serj.  Whitahcr.  Bly  lord,  we  think  it  proper 
to  take  notice,  that  upon  the  three  indictments 
whereof  he  hath  been  found  guilty  on  the  sta- 
tute of  king  Henry  U,  for  obtaining  money  by 
false  tokens,  tlu're  can  l>e  no  fine  in  the  case  : 
VfQ  must  therefore  crave  corporal  punishment. 

Sir  William  Thonij/xon.  The  question  is,  uhat 
corporal  punishmeni  l*"  To  be  sure  he  will  be 
pilloried. 

Serj.  Whitaker.  The  pillory,  my  lord,  is  no- 
thing. The  gentleman  hath  endeavoured  to 
t^et  many  tliousaud  pounds  of  several  gentle- 
men :  now  he  is  only  to  look  through  a  wooden 
casement,  and  this  is  to  make  recompeiice. 
AVe  humbly  hope,  that  according  to  the  t\oiils 
of  the  act  of  parliament,  some  punishment  will 
be  ordered,  not  only  ignominious  but  cor|N)ial 
punishinciil,  as  the  words  are  very  exteM<>ive. 

Sir  WilUum  Thompson.  The  Court  lo  be  sure 
will  order  icnprisoiiuicnt,  as  well  as  the  pillory, 
and  security  afterward. 

Serj.  Whilakcr.  Hut  should  not  the  punish^ 
mem  left  to  the  discretion  of  the  Court  be  ex- 
tended lo  Komctliing  further? 

Sir  WilUum  Thompson.  1  am  not  for  extend- 
ing it  to  ti)rtijre.  1  know  not  any  precedent ; 
wniilil  I  beLMn  any  thing  of  tlibt  nature, 
-iog  himMlf  la  limited  by  our  bw. 


Trial  ff  WiUiam  Hdet. 


[«96 


nAa^ 


Serj.  Whitaker.  The  penalty  seems  left  to 
the  discretion  of  this  Court. 

Sir  William  Thompson.  I  would  not  extend 
it.  1  do  not  know  but  that  the  parliament  oiay 
think  of  something  else  afterwards. 

Serj.  Whitaker.  Well,  Sur,  1  have  laid  U  be- 
fore you,  1  submit  it. 

The  Judgment  of  the  Court : 
That  William  Hales  and  Thomas  Kinnefs- 
ley  should  stand  twice  in  the  pillory ;    once  in 
Fleet-street,  at  the  end  of  Fetter- lane,  and  once 
at  the  Royal  Exchange,  in  Coruhill. 

TIrat  Hales  should  pay  a  fine  of  fii\y  mtrk% 
suffer  five  years  imprisonment,  and  give  seca- 
rity  for  his  good  behaviour  for  seven  years  af- 
terwards.   And, 

That  Kinnersley  should  pay  a  fine  of  2001 
(an  hundred  on  each  indictment,)  suffer  two 
years  imprisonment,  and  give  security  for  hit 
good  behaviour  for  three  years  longer. 

Air.  Hales  begged  that  two  years  of  his  im- 
prisonment might  be  remitted  on  account  of  his 
age ;  but  it  was  not  granted. 

February  11  following,  Hales  and  Kinners- 
ley stood  in  the  pillory  at  the  Royal  Exchaogi 
in  Cornjiill. 

February  15.  They  both  stood  again  in  tbe 
pillory  at  Fetter- lane  end,  in  Fleel-sticat 
Kinnersley  stood  both  times  in  his  canoDial 
habit,  thinking  to  draw  comfiassiou  and  re- 
spect from  the  popuhice,  but  it  had  the  OM- 
tmry  effect. 

Feb.  18th  following,  died  in  the  Press-wd 
in  Newgate  the  said  William  Hales ;  and  April 
7,  1729,  died  in  the  same  place,  of  a  fcftfi 
Thomas  Kinnersley,  clerk. 

"  Forgery  is  now  made  felony,  without  be- 
nefit of  clergy  ;  as  is  likewise  the  publishing 
any  forged  deed,  will,  bond,  note,  indorsement, 
<Scc.  knowing  them  to  be  forged,  by  the  stat.  9 
and  7  Geo.  2,  which  see  for  the  several  parti- 
cular cases  there  mentioned.*' — Former  Edit. 

See,  also.  East's  Pleas  of  the  Crown,  c.  19« 

As  to  proof  by  comparison  of  hands,  to  which 
it  appears  that  recourse  was  had  in  some  of 
these  Trials,  see  in  this  Collection  AlgemoB 
Sidney's  Case,  toI.  9,  p.  8t7.  See,  also,  vol. 
19,  pp.  397,  et  seq.  vol.  16,  p.  200. 

At  the  time  whf  n  these  frauds  were  com- 
mitted by  Hales  and  Kinnershy.  it  was  usual 
for  privileged  persons  to  frank  letters  by  mere 
indorsement  of  their  names.  By  stat.  4G.  3, 
c.  24,  it  is  required  that  members  of  either 
house  of  parliament  shall  write  the  whole  super- 
scription thereof.  A  history  of  franking  is  in- 
serted in  the  Gentleman's  3lagazine,  voL  d-l^ 
p.  644. 

Some  years  after  these  cn<!r<  of  Hales  and 
Kinnersley,  a  curious  uttuuipt  was  made  by 
one  Fournier,  a  popish  priest  and  fugitive  from 
France,  to  dejfraud  bishop  llondley  of  8,900/.  by 
means  of  a  promissory  note  furled  on  a  frank. 
The  bishop  published  an  account  of  the  trans- 
action, of  wnicb  an  abridgement  is  inserted  in 
the  Supplement  to  the  Geutlemaii's  MagajeiiM 
for  the  yew  1757«    See,  also,  2  Vciey,  445. 


S971         Proceedings  in  ilii  House  of  Commons^  tfc.         A.  D.  1729« 


[898 


478.  Proceedings  against  John  Huc-gins,*  esq.  Warden  of  the 
Fleet,  Thomas  Bambridge,  esq.  Warden  of  the  Fleet, 
Richard  Corbett,  one  of  the  Tipstaffs  of  the  Fleet,  and 
Wm.  Acton,  Keeper  of  the  Marshalsea  Prison  :  3  George  II, 
A.  p.  1729. 


i  IlPORT    FROM    THE    COMMITTEE    OF 

THE  House  of  Commons  appoint- 
ed TO  enquire  into  the  State 
or  the  Gaols  of  this  King- 
dom, so  far  as  relates  to  the 
CRUEL  Usage  of  the  Prisoners  ; 
which  occasioned  the  following 
Trials. 

Jovb  90  Die  Martii,  1729. 

Mr.  Ogpktborpe,  from  the  Cominittee  ap- 
pmei  to  cnquive  into  the  State  of  the  Gaols  of 
Hhi  kHwdoin,  made  a  Report  of  some  progress 
vkMh  ibe  Committee  had  made  in  their  enquiry 
blilht  state  of  the  Fleet  prison,  with  the  Re- 
■riMH  of  the  Committee  thereupon ;  and  he 
mi  the  Report  in  his  place,  and  aUerwards  de- 
botdlhesame  in  at  the  table,  viz. 

The  Committee  find,  That  tlie  Fleet  prison 
eient  prison,  and  fonnerly  used  for  the 
I  of  the  prisoners  committed  by  the 
al-table,  then  called  the  Court  of  tlie 
SlvCbamber,  which  exercised  unlimited  au- 
ifaari()-,and  inflicted  heavier  punishments  than 
by  lar  Jaw  were  warranted. 

Aai  as  that  assumed  authority  was  found  to 
be  ao  intolerable  burden  to  the  subject,  and  the 
ncaoi  to  introduce  an  arbitrary  power  and  ^o- 
icremeni,  all  jurisdiction,  power,  and  autlio- 

*  See  New  Pari.  Hist.  vol.  8. 
**  Aad  here  cau  I  forget  the  geoerous  band 
Who,  touch'd  with  humau  wue,  redressive  scarcbM 
kio  the  horrors  of  the  gloomy  jail  ? 
l'r.piu«d.  and  uu heard,  where  misery  moans ; 
Where  sickness  pines  ;    where  thirst  nnrl  hunger 
And  poor  oiisfortune  feels  the  lash  of  vice,    [burn, 
Wtule  in  the  land  of  liberty,  the  land 
1(~bofe  every  Mrcet  and  public  meeting  i;low 
Wuhopen  freedom,  little  tyrants  racM ; 
j^cutch'd  the  lean  monM^  fiom  the  star\-ing  mouth  ; 
Tcrt  from  cold  wintry  limbs  the  tatteHd  weed, 
L«tD  robb'd  them  of  the  last  of  comforts,  sleip, 
Tb«  firee-bgm  liriton  to  the  dung*  un  cbainM 
'>r,  V.  Uie  lukt  of  cruelty  prevail'd. 
At  pk-asure  mark'd  him  with  inglorious  stripes ; 
And  cni»hM  out  lives,  by  secret  barbarouk  ways, 
T^atfor  their  country  would  have  toil'd,  or  bled. 
0  great  design  !  if  executed  well, 
Vnh  (latient  care,  and  wisdom- tcmper'd  zeal. 
Te  looi  of  twTcy  !  yet  resume  the  search ; 
INtg  forth  the  legal  monsterx  into  light, 
Vrmdi  from  their  hands  oppression's  iron  rod, 
Aad  bid  the  cruel  feel  the  pains  they  give." 

TaQMsoii's  Winter. 


rity  belonging  unto,  or  exercised  in  tlie  tame 
court,  or  by  any  the  judges,  officers,  or  mi- 
nisters thereof,  were  clearly  and  absolutely  dis- 
solved, taken  away,  and  determined  by  an 
act  made  in  the  16th  year  of  the  reign  of  king 
Charles  the  1st. 

And  thereby  the  Committee  apprehend  all 
pretences  of  the  wan!en  of  the  Fleet  to  taka 
fees  from  archbislio|>8,  bishops,  temporal  peers^ 
baronets,  and  others  of  lower  degree,  or  to  put 
tbem  in  irons,  or  exact  foes  for  not  doing  so, 
were  determined,  and  abolished. 

That  atler  the  said  act  took  place,  the  Fleet 
prison  became  a  prison  for  debtors,  and  for  con* 
tempts  of  the  Courts  of  Chancer^*,  Exchequer, 
and  Common  Pleas  only,  and  fell  under  thtt 
same  regulations  as  other  gaols  of  this  king- 
dom. 

That  by  an  act  of  the  92d  and  2dd  of  kinj^r 
Charles  the  2d,  the  future  government  of  all  pri- 
sons was  vested  in  the  lords  chief  justices,  the 
chief  baron,  or  any  two  of  thi-ro,  for  the  time 
being ;  and  the  justices  of  the  peace  iu  I^oudou, 
Middlesex,  and  8urry  ;  and  the  judges  for  the 
several  circuits  ;  and  thejusticcs  of  the  peace, 
for  the  time  being,  in  their  several  pn  clucts : 
And  {iursuaut  thereunto,  seveial  orders  uiid  re- 
gulations have  been  made,  uhich  the  present 
warden  of  the  Fleet  hath  not  regarded  or  com- 
plied  with,  but  hath  exercised  an  unwurranlablo 
and  arbitrary  power,  not  only  in  extorting  ex- 
orbitant fees,  but  in  oppressing  prisoners  for 
debt,  by  loading  them  with  irons,  worse  than 
if  the  Star  Chamber  vias  still  subi»isting,  and 
contrary  to  the  Great  Charter,  the  foundation  of 
the  liberty  of  the  subject,  and  in  defiance  and 
contempt  thereof,  as  well  as  of  other  good  lawK 
of  this  kingdom. 

it  appears  by  a  patent  of  the  third  year  of 
queen  Elizubeth,  recited  in  letters  patents 
healing  date  the  I9lh  year  of  king  Charles  the 
2d,  that  the  Fleet  prison  was  an  ancient  prison, 
called  Prisona  de  le  Fleet,  alias.  The  Queen's 
Gaol  of  the  Fleet ;  and  that  certain  constitu- 
tutious  were  then  established  by  agreement  be- 
tween Uichard  Tyrrel,  warden,  and  the  pri- 
soners ol'tlie  Fleet,  and  a  tabic  of  fees  annexed, 
in  which  the  fees  to  be  paid  by  an  archbishop, 
duke,  uiaiipiis,  earl,  or  other  lord  spiritual  or 
temporal,  are  paiticularly  mentionetl,  and  the 
tincascejtained  \ihieh  they  are  to  nay  for  the 
liberty  of  the  house  and  irons  ;  ana  that  these 
constitutiuus  and  orders  were  confirmed  by  the 
said  letters  patent  of  king  Charles  the  2d: 
Which  letters  |»ateut  grant  the  oHice  of  warden 
of  the  Fleet,  and  of  the  keeper  of  the  Old  Pa- 


3  GEORGE  II.  Proceedings  in  the  House  qfCommonSf         [SOS 

tbe  prifloners  in  the  rules  delirered  iiim,  to  be 
cannot  have  executed  the  trust  of  keepiiur  his 
prisoners  in  safe  custotly,  when  he  did  not  kaffm 
who  or  where  they  were. 

The  Committee  find  that  the  said  Thomas 
Bambridge,  who  for  some  years  acted  asde* 
puty- warden  of  the  Fleet,  and  is  now  actnallj 
warden  of  that  prison,  hath  himself  been  aidisf 
and  assisting  in  an  escape :  that  he  canted  t 
private  door  to  be  made  through  the  walls  of  lb 
nrison  out  of  the  yard  where  the  dogpc  are^  tbe 
key  of  which  door  was  kept  by  hiinself,  and  hk 
with  his  own  hands  opened  the  door  and  let  oat 
Boyce,  the  smuggler,  charged  at  tlie  lung*! 
suit  with  upwards  of  30,U00/.  wbo  WM  aftar- 
wards  seen  at  Islington,  and  hath  beeo  fetnd 
times  let  out  of  the  prison  by  Bambridge. 

The  Committee  find  that  the  said  Bambridgt 
hath  by  himself  and  his  agents  ofteo  refosed 
to  admit  prisoners  into  the  prison,  though  eon- 
mittcd  by  due  course  of  law :  and  in  order  to 
extort  money  from  them,  hath  often,  oontmj 
to  an  act  of  the  92ud  and  33d  of  king  GharUi 
3,  without  their  free  and  voluntary  cnMsei^ 
caused  them  to  be  carried  away  fh>m  the  pri- 
son gate  unto  a  public  victual hnjr  or  driokuigi 
house,  commonly  called  a  spunging-bouae,  be- 
longing to  him  the  said  Bambridge  as  wardsi| 
and  rented  of  him  by  Corbett  his  tipstaff,  aM 
hath  there  kept  them  at  exorbitant  chami, 
and  forced  them  to  call  for  more  liquor  ikan 
they  were  inclined  to,  and  to  spend  more  thaa 
they  were  able  to  afford,  to  the  defraudiDf  si 
their  creditors,  and  the  distressing  of  their  Ah 
milies,  whose  substance  they  are  compdM 
there  to  consume ;  and  for  the  more  eflcdnl 
making  them  stretch  their  poor  remains  of  eie- 
dit,  and  to  squeeze  out  of  them  the  charity  ol 
their  fi-ieiids,  each  prisoner  is  better  or  wom 
treated  according  tu  bis  expences,  some  beinj 
allowed  a  handsome  room  and  bed  to  them' 
selves,  some  stowed  in  garrets,  three  in  one  bed 
and  some  put  in  irons. 

That  these  houses  were  further  used  by  tK< 
said  Bambridge,  as  a  terror  for  extorting  mo< 
ney  from  the  prisoners,  who  on  secnrity  givei 
liuve  the  liberty  of  the  rules ;  of  which  Mr 
Robert  Castell  was  an  unhappy  instance^  a  mai 
bom  to  a  competent  estate,  but  being  onfortn 
nately  plunged  in  debt,  was  thrown  into  pri- 
son  ;  he  was  first  sent  (according  to  custom)  li 
Corhett's,  from  whence  he  by  presents  touBam 
briiij^  redeemed  himself,  and,  giving  security 
obtimed  tlie  liberty  of  the  rules ;  notwithstand 
in*j;  which,  he  had  frequently  presents,  as  thr 
are  called,  exacted  from  him  by  Bambridge,  aiM 
was  menaced,  on  refusal,  to  be  sent  radc  I 
Corl)€tt's  again. 

The  said  Bambridge  having  thus  unlawfallj 
exiortetl  large  sums  of  money  from  him  in  t 
very  short  time,  Castell  grew  weary  of  beiii| 
mnde  such  a  wretched  property,  and  resolvin| 
nut  to  injure  farther  his  family  or  his  creditor 
for  the  sake  of  so  small  a  liberty,  he  refused  ti 
submit  to  farther  exactions ;  upon  which  thi 
said  Bambridge  ordered  him  to  he  re-commit 
ted  to  CorbeU'i^  vhcre  tbe  small-pox  tbei 


S99J 

lace  at  Westminster,  the  shops  in  Westminster- 
hall,  certain  tenements  adjoining  to  the  Fleet, 
and  other  rents  and  profits  belonging  to  the 
warden,  to  sir  Jeremy  Whichc^t  and  his  heirs 
for  ever.  And  the  said  sir  Jeremy  rebuilt  the 
said  prison  at  his  oi^n  expence,  as  a  considera- 
tion tor  the  grant  thereor.  But  tlie  said  prison, 
and  the  custody  of  the  prisoners,  lieing  a  free- 
hold, and  falling  by  descent  or  purchase  into 
the  bands  of  persons  incapable  of  executing  the 
office  of  warden,  was  the  occasion  of  great* 
abubes,  and  frequent  complaints  to  parliament, 
till  at  length  the  patent  was  set  aside. 

And  a  patent  for  life  was  granted  to  Bald- 
win Leighton,  esq.  in  consideration  of  his 
great  pains  and  expences  in  suing  the  former 

Satentees  to  a  forfeiture,  and  he  soon  dying, 
ohn  Iluggins,  esq.  by  giving  5,060/.  to  the 
late  lord  Clarendon,  tlid,  by  his  interest,  obtain 
a  grant  of  the  said  office  for  his  own  and  his 
son's  life. 

That  it  appeared  to  the  Committee,  That  in 
the  yr:ir  1725,  one  Mr.  Ame,  an  upholder,  was 
carried  into  a  stable  which  btofHl  where  tbe 
strong  room  on  the  master's  side  now  is,  and 
was  there  confined  (being  a  place  of  cold  re- 
straint) till  he  died,  and  that  he  was  in  good 
state  of  health  before  he  was  C4>nfined  to  that 
room. 

That  the  said  John  Huggins  growing  in 
years,  and  willing  to  retire  from  bnsine&s,  anri 
nis  son  not  caring  to  take  upon  him  so  trouble- 
some an  office,  he  hath  for  several  years  been 
engaged  in  continual  negociations  about  the 
disposal  of  tbe  said  office,  and  in  August  last 
concluded  a  final  treaty  with  Thomas  Bam- 
bridge and  Dougal  Cuthbert,  esqrs.  and  for 
5,000/.  to  lie  paid  unto  him,  obliged  himself  to 
surrender  tbe  said  patent  for  his  and  his  son's 
life,  and  procure  a  new  patent  for  the  said  Bam- 
bridge and  Cuthbert,  which  the  said  Huggins 
did  accordingly  obtain,  and  Cuthbert  paid  m 
money,  or  gave  good  security  to  pay  2,500/. 
for  one  moiety  of  the  said  office  of  warden ; 
and  Bambridge  gave  land  and  other  security, 
which  tbe  said  iluggins  was  then  content  with, 
for  S,500/.  being  for  the  other  moiety  of  the 
said  office.  ' 

Tliat  Mr.  Huggins  being  examined  touchinsf 
an  instrument  signed  by  him  in  November 
1724,  appointing  Richard  Corbett,  one  of  the 
five  tipstafis  of  or  belongmg  to  tbe  Fleet  prison, 
acknowledged  that  he  bad  no  power  by  virtue 
of  any  patent  from  the  crown  to  constitute  such 
tipstaff,  but  that  when  he  came  to  his  office 
he  found  that  such  an  officer  had  been  so  con- 
stituted, and  be  took  that  for  a  precedent  to  do 
the  same. 

That  since  the  said  Thomas  Bambridge  has 
acted  as  warden,  the  books  belonging  tn  the  of- 
fice of  the  \i  arden  have  been  very  negligently 
kept,  and  the  discharu^es  not  duly  entered,  to 
the  great  prejudice  of  many  of  fiis  majesty's 
subjects  ;^  and  he  hath  not  regularlv  taken 
charge  of  the  prisoners  committed  to  his  care 
by  his  patent ;  and  hath  not,  as  be  himself 
coofeaetbi  e?  er  had  any  aotbentio    list  of 


Caaleil  ocquunted  liim  willi  liix 

Ml  Ib&l  (lislenifier,  aoit  Hint  be 

lliKl  llu;  [)iilling  liim  into  a 

iviiulil  occasion  iiis  deuili, 

befbri!  lie  could  xeltle  Iiih 

tre  a  S"*'^  intinilice  U>  lila  crc- 

woulil  expose   Ilia  family   lo  ile- 

ind  tlierefore  be  earai-sliy  detireil 

■igkl  eitber  \ie  sent  lo  tnulher  bouic, 

m  **»  alo  Uic  sin)  iuclf,  w  ■  Urnur.  Tiic 
WhKWj  COM  ot'thii  poor  gentlemsn  moved 
A*inis™U  uf  the  «aicl  Ilnnilirulere  l*)  COdi- 
■■•,  Mt  ib:i<  Ihey  also  used  their  iiimoBt  en- 
MMWi  lo  diiMiade  him  ftom  sendiii|;  ibis  un- 
hfBf  fricuDcr  lo  tbst  infected  house :  but 
IwifcHu,!  I«rctd  hini  lliilher,  where  lie  (as  be 
tead  Ih  tkvuld)  caui{lil  llic  small'iwx,  and  in 
tfrwdati  iDsd  thereof,  justly  cbarfpn^  the 
■UBuiknilftr  oidibiscleBlh  ;  and  UDlmjipily 
Iwriag  all  lii*  aflairv  id  the  greatest  confusion, 
■<iaHiti«roa*  family  of  small  ubildn-n  iiilbc 

ll  ifiii  strd  to  Ihe  Commillee,  that  the  let- 
>l(  sui  af  ibe  Fleet  tenements  to  fncluallei'*. 
fa  At  >*<«plioD  of  ^risnuers,  bfitli  been  bul  of 
tatrnctisAl,  aoditiat  the  tint  of  llieni  lelt  for 
faprpoar  was  to  Mary  Wbitwood,  nho  still 
MMaotmaDi  of  the  same,  and  that  ber  rent 
WB«d  3il.  tier  arm.  Iteen  iocreaaeil  lo  60'. 
■rfannaio  aunber  of  nriMDersitipulftied  to 
h^akapny  of,  to  enable  her  to  pay  so  great 
ana;  and  that  she,  to  procure  the  benclit  of 
klr^i  web  a  uuinhtr  nl  ptisoners  sent  to  her 
h^  lialh,  o*er  and  abore  the  increased  rent, 
I^Msrdlo  makeapresrnt  tolheHBid  Bam- 
Win  •(  fnrty  ([uiiieas,  a*  also  of  a  toy,  (as  it 
kOU)  haag  tbe  model  of  a  Chinese  ship, 
H^^aaiWr.  spt  insil'er,  far  which  fourscore 
InW-fKm  bad  (icrn  olTrTed  her. 

Ab*  iJm'  first  method  of  extortia;;;  money 
^■^  anlufipy  prisonen  ;  and  wliea  they 
^•alaocer  bearllie  misery  and  et|ieni'eof  a 
lfsipaB'Ti<HMe,  belbre  they  can  obtain  the  pri- 
•Afi  tf  hrtna;  adiniitcd  into  the  |<nsoo,  lliey 
■■•Uicedlaewnply  with  such  e\atbitant  fees 
■  1U  «d  Dambridge  thinks  fit  to  demaud, 
rtrt.  tflbey  do  not,  ihey  are  vure,  under  ta- 
Mi  |s«i*nce*,  of  bein^  turned  dDivn  to  the 
^^MM  SHki,  if  not  put  m  irons  and  diingeous ; 
■lllil*  baabcra  done  to  those  who  were  wilbnif 
■'afemi  to  pay  the  Ires  »labliEhe<l  by  the 
*~"'"  m  >n*dii  by  tbe  judges  ol  the  Common 
T(iD.  T«m  inr,  which  ought  to  hate 
^up  iasume  public  ptoce in  the  priaon, 
Kahich  (br  friaon'ri  might  bare  free  access, 
ta  via  avcirlrd  by  ihi!  said  James  Damea, 
pkMni  lo  unirr*  uf  the  said  Bambridge; 
^cb  taUe  iif  Ifi-a  srn'in*  lo  he  unreasonable, 
■■ua  It  oldtiTi-i  tiu-u  nlin  are  committed  for 
••  asini;  alitr  ' i' '-'-'-   tti  pay  such 


9«lSIH*  II 

H««T(ii 


1  JU.  a.rt<.i<  L  of  inch 

I    ^b«!i,in<  .iiiusfram 

I  fc  nlMtasiitc  priKiiic,  s,  il„.  i„ji,l  Biitubrid||:e 
I  ^"l  |MWad*  be  lias  a  righx,  as  warden, 
Ik  nnui  as  luliioilril  [unmt  of  cbtnging 


a  them  ' 


John  Ilug^m  anclolhtri.  A.  D.  1729. 

pristneri  from  room  lo  t^>om  ;  ofliirniti|[  tli 
iQlo  ilie  common. side,  thnn^h  tliey  bate  paid 
the  tnaater's  side  fee ;  and  loflicting  arbili  ary 
punishments  by  locking  llieni  down,  in  un- 
wholesome dungeons,  and  Idsdtnx  them  with 


e  iuataiicet  of  nhich  fal- 


Jacob  Alendez  Solas,  a  Portneorw,  was,  h 
far  as  it  appeared  to  the  Cnmniinee,  one  of  the 
fiist  prisoners  for  delit  that  erer  was  loadeJ 
tviib  irons  in  the  Fleet;  the  said  BamliriilD* 
one  liny  called  him  into  the  gale-house  of  ihc 
prison,  called  the  Lodge,  iTh(.Te  he  candid  liiin 
lo  be  seized,  fettered,  and  carried  to  Corbetl's. 
ibe  spungiuir-  bouse.Bnd  there  kepi  fur  upwards 
uf  a  we«k,  and  when  bron^it  back  into  the  pri- 
son, Bambriilge  caused  him  tn  be  turned  m[» 
the  dun^on,  called  the  Strong  Room  of  tha 
Master's  side. 

Tbis  place  is  a  vault  like  those  in  irhich  the 
dead  are  interred,  and  wherein  the  bodies  of 
persons  dyini!  in  the  said  prinonare  usually  de- 
posited, till  the  coroner's  inquest  haih  passed 
upon  them  ;  it  bas  no  chimney  nor  fire-place, 
Dor  any  light  hut  what  comes  over  Ihc  door,  or 
thraiiglia  hole  of  about  eight  inches  square,  ll 
Ib  ueiilier  paver]  nor  bonriled  ;  and  Ibe  rough 
bricks  apjiear  boib  on  the  aides  and  top,  bcinr 
neither  walnscolled  nor  ptasleivd  :  what  adda 
lo  the  dampness  and  stench  of  the  place  is,  iu 
being  built  orer  the  common  sewer,  and  ad- 
joining to  llieaiiikand  dung-bill  where  all  the 
naslioess  nf  tlie  prison  is  cast.  In  ihis  miser. 
able  place  the  poor  wretch  was  kept  by  llie  said 
Ilambridge,  manacled  and  shackled  for  oear 
two  montlis.  At  length,  on  leceiving  live  gui- 
Deas  from  Mr.  Kemp,  a  friend  uf  Solas's,  Bam- 
bridge  released  the  prisoner  from  bis  cruel  con- 
finement. But  though  his  chains  were  taken 
off,  his  terror  still  remained,  and  the  unbappj 
was  prevailed   upon  liy  that  ti 


re<|uirvd  of  him  1  and  the  Committee  ihem- 
selres  saw  an  instance  of  Ibe  deep  impression 
his  suffrrinin  had  made  upon  bim ;  fur  on  bit 
turmising,  Irom  souiEthiugtaid,  that  Baiiibridge 
was  to  return  again,  as  Warden  of  the  Fleet,  lie 
fainted,  and  the  blood  started  oitl  of  bis  luoulli 

CapMin  John  Mackpheadris,  who  was  bred 
a  merchant,  is  another  ntelancboly  iDaiaiice  of 
ihe  cruel  use  the  said  Bsmbridge  hath  made 
of  his  assumed  authority.  Mackphcadria  woa 
a  considerable  trader,  and  in  a  very  flntirishing 
condition UDli I  ihevear  ITUO.wben  beingbound 
for  large  sumslo  tW  crown,  forapersnnatter- 
warda  niined  by  the  misforlunes  ol  that  year, 
he  was  undone.  In  June,  1727,  he  was  a  pri- 
soner in  Ihe  Fleet,  and  although  be  bad  beiore 
paid  bis  commitment- fee,  the  like  fee  was  es. 
lorled  from  bim  a  second  lime  i  nnd  be  baviog. 
furnished  a  room.  Bambrirlge  demanded  an  cx- 
travngaoi  price  lor  il,  which  herefiuied  to  |iay  ; 
and  urged,  tlial  it  was  unlawful  fur  ihc  warden 
i«  demand  extrarao'int  rents,  and  ntl'ered  lo 
|»ay  whal  was  Ivguly  dqe :    ^olivitli«laodil>(f 


303] 


8  GEORGE  IL  Proceedings  in  the  House  of  Commons f 


which,  the  said  Bambrid-^e,  assisted  by  tlie 
laid  James  Barnes  and  other  accomplices,  broke 
open  his  room,  and  took  away  sercral  thinjfs 
of  great  value,  amongst  others,  the  king's  ex- 
teat  in  aid  of  the  prisoner  (which  was  to  have 
been  retamed  in  a  few  days,  in  order  to  procure 
the  debt  to  the  crown,  and  the  prisoner's  en- 
largement,) which  Bambridge  still  detains. 
Not  content  with  thia,  Bambndge  locked  the 
prisoner  out  of  bis  room,  and  forced  him  to  lie 
in  the  open  yard,  called  the  Bare.  He  sal 
quietly  under  his  wrongs,  and  getting  some 
poor  materials,  built  a  little  hut  to  protect  him- 
aclf,  as  well  as  he  could,  from  the  injuries  of 
the  weather.  The  said  Bambridge  seeing  bis 
unconcerned ness,  said,  **  Damn  him  !  ne  is 
easy.  I  will  put  him  into  the  Strong  Room 
before  to-morrow  *,"  and  ordered  Barnes  to 
pull  down  his  little  hut,  which  was  done  ac- 
cordingly. The  poor  prisoner  being  in  an  ill 
■tate  of  health,  and  the  night  rainy,  was  put  to 

Et  distress.  8ome  time  after  this  he  was 
at  eleven  o'clock  at  night)  assaulted  by 
ibridge,  with  several  other  persons  his  ac- 
complices, in  a  violent  manner;  and  Bam- 
bridge, though  the  prisoner  was  unarmed,  at- 
tacked him  wiih  his  sword,  but  by  good  fortune 
was  prevented  from  killing  him  ;  and  several 
other  prisoners  coming  out  upon  the  noise,  they 
carried  Mackpheadris  for  safety  into  another 
gentleman's  room;  soon  after  which  Bam- 
bridge coming  with  one  Savage,  and  several 
others,  broke  open  the  door,  and  Bambridge 
strove  with  his  sword  to  kill  the  prisoner :  but 
be  again  got  away,  and  hid  himself  in  another 
room.  Next  morning  the  said  Bambridge  en- 
tered the  prison  with  a  detachment  of  soldiers, 
and  ordered  the  prisoner  to  be  dragged  to  the 
lodge,  and  ironed  with  great  irons ;  on  which 
he  desiring  to  know  folr  what  cause,  and  by 
what  authority  he  was  to  be  so  cruelly  used  ? 
Bambridge  replied,  *'  It  was  by  his  own  au- 
thority, and  damn  him  he  would  do  it,  and  have 
his  life."  The  prisoner  desired  he  might  be 
carried  before  a  magistrate,  that  he  might  know 
his  crime  before  he  was  punished  ;  but  Bam- 
bridge refused,  and  put  irons  upon  his  legs 
which  were  too  little,  so  that  in  forcing  them 
on,  bis  legs  were  like  to  havo  been  broken ; 
and  the  torture  was  impossible  to  be  endured. 
Upon  which  the  prisoner  complaining  of  the 

Sievons  pain  and  straitness  of  the  irons,  Bam- 
idge  answered,  "That  he  did  it  on  purpose 
to  torture  him :"  on  which  the  prisoner  reply- 
ing, "  That  by  the  law  of  England  no  man 
oiuriit  to  be  tortured  ;"  Bambridge  declared, 
**  That  he  would  do  it  first,  and  answer  for  it 
aftei^ards ;"  and  caused  him  to  be  dragged 
awaj  to  the  dungeon,  where  he  lav  without  a 
bed,  loaded  with  irons  so  close  rivetted  that 
thev  kept  him  in  continual  torture,  and  morti- 
lied  his  legs.  After  long  application  his  irons 
were  changed,  and  a  suigeon  directed  to  dress 
his  legs,  but  his  lameness  is  not,  nor  ever  can 
be  cored.  He  was  kept  in  this  miserable  con- 
iSAaa  fbr  three  weeks,  by  wfaiefa  bis  sight  is 
yitly  prqodioad,  mid  io  daagcr  of  being  toil. 


The  prisoner,  upon  this  usage,  peti 
judges,  and  afler  several  meetings,  a 
hearing,  the  judges  reprimanded  Mr. 
and  Bambridge,  and  declared,  <<  Tha 
could  not  answer  the  ironing  of  a  nn 
he  was  found  giiilty  of  a  crime ;"  be 
out  of  term,  they  could  not  give  the 
any  relief  ur  satisfaction. 

Notwithstanding  this  opinion  of  th 
the  said  Bambridge  continued  to  kee 
soner  in  irons  till  Tie  h&d  paid  him  six 
and  to  prevent  the  prisoner's  recov< 
mages  for  the  cruel  treatment  of  hi! 
bridge  indicted  him  and  his  principal 
at  the  Old  Bailey,  before  they  knew  i 
of  the  matter ;  and  to  support  that  in 
he  had  recourse  to  subornation,  and  ti 
of  bis  servants  out  of  places  which 
bought,  because  they  would  not  swe 
that  the  prisoner  had  struck  the  sa 
bridge,  which  words  he  had  inserti 
fidavits  ready  prepared  for  signing,  a 
they  knew  to  be  false.  As  soon  as  1 
apprized  of  it,  they  applied  to  the  loi 
who  ordered  the  grand  jury  down  to  t 
where  they  fonnd  that  Bambridge  wa 
^es50r.  Bnt  the  bill  against  the  prii 
mg  already  found,  the  second  inquir 
late. 

The  prisoners  being  no  longer  abli 
the  charges  of  prosecution,  which  ha 
cost  100/.  and  being  softened  by  pron 
terrified  by  threats,  submitted  to  plea 
on  a  solemn  assurance  and  agreem 
with  Bambridge  before  witnesses,  of  fa 
one  shilling  fine  laid  upon  them  ;  bi 
as  they  had  pleaded  guilty,  Bambri 
advantage  of  it,  and  has  continued 
them  and  their  securities  ever  since. 

The  desire  of  gain  urged  the  said  B 
to  the  preceding  instances  of  crueltj 
more  diabolical  passion,  that  of  malice, 
him  to  oppress  captain  David  Sincia 
following  manner : 

At  the  latter  end  of  June  or  beg 
July  last,  the  said  Bambridge  declar« 
said  James  Barnes,  one  of  the  agei 
cruelties,.  **That  he  would  have 
blood;"  and  he  took  the  opportunity  < 
festival  day,  which  was  on  the  first  g 
following,  when  he  thought  captaii 
might,  by  celebrating  the  memory  o 
king,  be  warmed  witli  liquor  so  far  \ 
him  some  excuse  fur  the  cruelties  whi 
tended  to  inflict  upnn  him.  But  in-sc 
sure  he  was  disappoiuted  ;  for  cantaii 
was  perfectly  sober,  when  the  said  B 
rushed  into  Iiis  loom  with  a  dark  lai 
his  hand,  assisteti  by  his  accomplici 
Barnes  and  William  Piudar,  and  sup| 
his  usual  guard,  armed  with  muskets  i 
nets,  and  without  any  provocation  gi 
his  lanthorn  into  captain  Sinclair's  fai 
him  by  the  collar,  and  told  him  he  m 
along  with  him  :  captain  Sinclair,  tho 

Erised,  asked  fur  what,  and  bjr  what 
e  so  treated  him  P  Upon  which  Bi 


m 


iigahui  John  Huggins  and  others. 


A.  D.  1729. 


[306 


:.  iinikKiMd  etptaiD  Sinclair,  who  still  de*  i  seductHi  finnicby  indulpfinir  them  in  riot,  and 
"     '    •         ^       '    •       .••..•-     lerrifitui  otliers  with  fear  of  duress,  lo  swear  to 

and  subscribe  such  false  uffidavits  us  he  thought 
fit  10  projiarc  for  them,  on  several  occas^ions; 
in  all  which  wrongs  and  oppressions  John  Eve- 
rett also  actrd  as  one  of  the  said  Bambridjre's 
wicked  nccnmplires. 

That  the  said  Bambridge  being  asked  by  the 
Committee,  *'  By  nhat  authority  he  pretended 
;to  put  prisoners  into  dungeons  and  irons  ?"  an- 
swered, **  That  he  did  it  by  his  own  authority 
as  warden,  to  preserve  the  quiet  and  safety  of 
the  custody  ot  the  prison." 

But  it  appeared  to  the  Commiltee  by  the 
examinations  of  many  witnesses,  that  before 
the  time  when  Gyhbon  and  the  said  Bamlnridge 
I  acted  as  deputy- wardens  under  Mr.  Hug^inSi 
the  quiet  and  safety  of  the  custody  were  very 
well  preserved  witiiout  the  use  of  irons  or  dun* 
(j^eons. 

That  the  two  dun^^eons,  called  the  strong 
room  on  the  master's  side,  and  the  strong^  room 
on  the  common  side,  w«re  both  built  within 
these  few  years  ;  and  that  the  old  method  of 
punishing 'drunken  and  disorderly  persons  was 
putting  them  in  the  stocks ;  and  the  ponisb- 
ment  of  those  who  had  escaped,  or  attempted 
to  escape,  was  putting  them  uiMin  a  tub  at  the 
gate  of  the  prison,  by  way  of  public  shame,  or 
securing  them  without  irons,  in  their  proper 
rooms  for  some  days. 

And  tirat  the  said  duns^enns  were  built  in 
defiance  of,  and  contrary  to  the  declaration  of 
the  lord  Kinfsf,  when  lord  chief  justice  of  the 
Common  Fleas ;  who,  upon  an  application 
made  to  him  on  behalf  of  the  prisoners  of  the 

Fleet,  when  Mr.  Hucrj^ns  and  Gybbon 

ur^rcil  that  there  was  danger  of  prisoners  es- 
cnpinjj,  declared,  that  they  mi/^ht  raise  their 
walls  higher,  but  that  there  should  be  no  prison 
within  a  piisun. 

That  upon  the  strictest  enquiry,  the  Com- 
mittee civjld  not  find  that  any  pri*ioncrs  in  the 
Fleet  for  debt  had  been  put  in  irons  before  the 
said  Mr.  Ilu.«({;ins  had  the  ofiicc  of  warden. 

That  it  is  not  the  oi<ly  design  of  the  said 
Thomas  Bantbrid^e  to  cxt<irt  nior.-.  y  from  his 


Is  kBOw  by  what  aothority  they   so 
hw,  BMnbridge  grossly  insulted  him, 
"*',  bim  with  bis  cane  on  the  head  and 
wbilyt  he  was  held  fast  by  Pindar 
Hueb  base  and  scandalous  usage 
If  Aiijprtlcmiii,  who  bad  in  the  late  wars  al- 
l^iMliiiii  himself  with  the  greatest  coii- 
Wy,|iiiiliy  ind  honour,  in  the  service  of  his 
MtaOD  miny  the  most  brave  and  desperate 
MHi,  muit  be  most  shocking  and  intole- 
irikjjtlcafliiD  Sinclair  bore  it  with  patience, 
,fl|iifiriytO(;ooutof  his  room  unless  he 
ipMM;  vbereupon  the  said  Bambridge 
10  ruD  his  cane  down  his  throat,  and 
bii  gund  to  stab  liioi  with  their  bayo- 
rdbvhim  down  to  the  said  dungeon, 
thcCSimig  Room  ;    the  latter  of  which 
tiiyM,iBd  Bambridge  kept  him  confine<l  in 
iMvpandloithsoroe  place,  till  he  had  lost 
WPMffhiilimbs  and  memory,  neither  of 
jlttkH  he  perfectly  recovered  to  this  day. 
flmnnviting  cruelties  were  used  to  make 
fMMMmntmdre  terrible ;  and  when  Bam- 

aimid  he  was  in  danger  of  immediate 
he  rmioved  him,  for  fear  of  his  dy  in^^  in 
"ti  caused  him  to  be  carrieil  in  a  dying 
ifron  that  dnngeon  to  a  room  where 
IKIM  no  bed  or  furniture ;  and  so  unmer- 
4H^  fRvnted  his  friends  having  any  access 
jbKji,  thit  be  was  four  days  without  the  least 


^iffved  to  the  Committee  by  the  evidence 
.nMfND  and  others,  who  were  prisoners  in 

ebiK,tbat  when  captain  Sinclair  was  forced 
AMhstbeome  dungeon  he  was  in  perfect 


j^nSnclair  applied  for  remedy  at  law 
It 


the  said  cruelties  of  Bambridge,  and 
MpKarerf  a  Habeas  Corpus  fur  bis  witnesses 
jifcihwght  before  the  sessions  of  Oyer  and 
"■^i  when  the  said  Bambridge,  by  cohiur 
',UitiRnned  authoiity  as  warden,  took  the 
■■eriii of  Habeas  Corpus  from  the  officer 
•■"■Joty  h  was  to  make  a  return  of  them, 
■jMntnanded  him  to  keep  out  of  the  way, 
J^tbebiroself  went  to  the  Old  Bailey,  and 
iJ^A^y  indicted  captain  Sinclair  and  such 
*|il  vitoesies  as  he  knew  he  could  not  deter 
P>*BtVi  or  prevail  with  by  promises  to  go 
^Aetnith. 

JtMP  Sinclair  had  temper  enough  to  bear 
^■Hljr  almost  insupportable  injuries,  and  to 
^^  himself  for  a  proper  occasion,  when 


prisoners,  if  they  survive  his  inhuman  tieat- 


mciit,  hut  he  seems  to  ha>e  a  f.trther  \icw,  in 
case  it  eausui  ilentii,  of  possessiiip^  himself  of 
their  eflVets.  One  rv'mnrkabic  juouf  of  which 
the  Cunimittre  think  prnper  here  to  inseit,  viz. 

Mr.  John  Holder,  a  ^;'paMish  merchant,  was 
^^  -  ~.^^,.  .w.  wm  w.<^|^.  w^^«».w..,  ..  ..w  a  prisoner  iu  tlu^  Fleet,  nml  had  a  room  uhich 
Meihoukl  be  done  nim  by  the  laws  of  the     he  fitted  up  wi'.ii  his  own  t'urniture,  and  had 

with  him  all  \\\s  bof)ks,  aceounts  and  writiii^^ 
and  otljer  riVi  rJs,  to  the  value  dfab  >ut  30,0()0/. 
whicii  he  ('eclarcd  by  ailMiiivit,  upon  the  fol- 
lowing oecasiMu : 

The  baid  Thomas  Banjbrid^e,  by  foroe, 
turned  tliesp.id  Mr.  Holiler  (»vcr  to  the  common 
side,  and  took  possession  of  his  room,  in  whicli 
all  his  cilects  were. 

Mr.  Holder  remonstrated  stronijly  against 
this  usage,  and  Bambridge  refu^in^j^  to  restore 
him  to  his  room,  or  possession  of  !iis  eflects,  }'^ 
made  a  proptr  atadavil  m  otA*»^  \cv  ^VV^^  ^'*' 
X 


.  ta  the  said  Bambridge  ha«  forced  others 
VVfiogs  and  injuries  beyond  human  bear- 
Hi  i^  endeavour  the  avenging  injuries  and 
^P^vioiis  which  they  could  no  longer  endure. 
^Ji' it  appeared  to  the  Committee,  that  the 
*'BMBbridge,  in  order  to  avoid  the  punish - 
^  dae  to  these  crimes,  hath  committed 
ptTf  vid  hath  not  only  denied  admittance  to 
wiificitori,  who  might  procure  justice  to  the 
^^  prisoners,  and  in  open  defiance  to  the 
■*!  tebeyed  the  king's  writs,  but  hath  also 
VOL  XVII. 


307] 


3  GEORGE  II.       Proceedings  in  the  House  of  ConimunSj  SfC» 


jiidj^es  for  relief,  and  declared  that  be  feared 
his  eflects  ini^ht  be  embezzled  whilst  he  was 
thus  unjustly  forced  irom  theai,  and  that  he 
feared  Bainbriiige's  cruel  treatment  of  him 
would  be  the  cause  of  his  death :  the  miseries 
of  the  common  side,  which  he  dreaded,  had 
such  an  eHTcet  upon  him  (being  a  man  of 
an  advanced  age,  and  accustomed  to  live  in 
ease  and  plenty,)  that  it  threw  him  iuto  such  a 
fit  of  sickness  as  made  his  Hfe  despaired  of,  and 
io  his  illness  he  often  declared,  "  That  the  vil- 
lain Bambridge  would  be  the  occasion  of  his 
death."  Which  proved  true;  for  liambridge 
finding  Mr.  Holder  like  to  die  in  the  duress 
which  he  liad  put  him  into,  (for  his  own  sake, 
to  avoid  the  punishment  inflicted  by  law  upon 
gaolers  who  so  inhumanly  destroy  their  pri- 
soners) permitted  him  to  be  carried  back  to  his 
room,  where  in  a  few  days  he  died  of  the  said 
sickness,  contracted  by  the  said  forcible  re- 
moval of  him  to  the  common  side  by  Barn- 
bridge,  as  aforesaid. 

Air.  Holder  by  his  last  will  appointed  mnjor 
Wilson  and  Mr.  J;ohn  Pigott  trustees  for  his 
son,  a  youth  of  about  13  years  of  age,  who  had 
accompanied  hiiu  in  the  time  of  nis  contine- 
meot. 

This  young  gentleman,  aApr  bis  father's 
death,  locked  up  his  eflects  in  several  trunks 
and  boxes,  and  delivered  the  keys  thereof  to 
Mr.  Pigott  as  his  trustee,  who  locked  up  the 
room  and  took  the  key  with  him  :  but  the  said 
Thomas  Bambridge  caused  the  said  room  to  be 
broke  opeu  by  Thomas  King,  anotlier  of  his 
accomplices,  and  caused  the  said  effects  to  be 
seized,  after  that  he,  Bambridge,  had  forced 
Mr.  Pigott  out  of  the  prison,  (though  a  prisoner 
in  execution)  and  locKcd  down  major  Wilson 
(the  other  trustee)  in  the  dungeon,  to  prevent 
their  taking  any  inventory  in  behalf  of  Uie  heir 
at  law,  then  an  orphan. 

These  evil  praclicus  of  letting  out  prisoners, 
extorting  exorbitant  fees,  sufleriug  escapes,  and 
exercisingall  sortsof  inhumanity  for  gain,maiy  io 
a  great  measure  be  imputed  to  the  venality  of'the 
warden's  oflice ;  for  the  warden  who  buys  the 
privilege  of  punishing  others,  does  consequently 
sell  his  forbearance  at  high  rates,  and  repair  his 
own  charge  and  loss  at  the  wretched  expencc 
of  the  ease  and  quiet  of  the  miserable  objects  in 
his  custody. 

Upon  the  whole  matter  Uie  Committee  came 
to  the  following  liesolutiuns,  viz. 

Resolved,  That  it  appears  to  this  Committee, 
tliat  Thomas  Barobri<W,  the  acting  warden  of 
the  prison  of  the  Fleet,  nath  wilfully  permitted 
several  debtors  to  the  crown  in  great  suras  of 
roone}',  as  well  as  debtors  to  divers  of  his  ma- 
jesty's subjects,  to  escape;  hath  been  guilty  of 
the  most  notorious  breaches  of  his  trust,  great 
extortions,  and  the  highest  crimes  and  misde- 
meanors in  the  execution  of  his  said  office; 
and  hath  arbitrarily  and  unlawfully  loaded  with 
irons,  put  into  dungeons,  and  destroyed  pri- 
soners for  debt  under  his  charge,  treating  them 
in  the  most  barbarous  and  cruel  manner,  io 


high  violation  and  contempt  of  the  laws  • 
kiugtium. 

Resolved,  That  it  appears  to  this  Comi 
that  John  Huggins,  esq.  late  warden  < 
prison  of  the  I*leet,  did,  during  the  time 
wardenship,  wilfully  permit  many  consid 
debtors  in  his  custody  to  esca|>e,  and  w 
torioosly  guilty  of  groat  breaches  of  his 
extortions,  cruelties,  and  other  high  c 
and  misdemeanors  in  the  execution  of  hi 
office,  to  the  great  oppression  and  ruin  of 
of  the  subjects  of  this  kingdom. 

The  Resolutions  of  the  Committee  beii 
verally  read  a  second  time,  were,  upon  the 
tion  severally  put  thereupon,  agreed  ui 
the  House,  and  are  as  follow,  viz. 

Resolved,  nem,  con.  That  Thomas 
bridge,  the  acting  warden  of  the  prison  < 
Fleet,  hath  wilfully  permitted  several  d 
to  the  crown  in  great  sums  of  money,  ai 
as  debtoi-s  to  divers  of  his  majesty's  subje 
escape ;  bath  been  guilty  of  the  most  not 
breaches  of  his  trust,  great  extortions,  ai 
highest  crimes  and  misdemeanors  in  the 
cntion  of  his  said  ofiic£ :  and  hath  arbit 
and  unlawfully  loaded  with  irons,  put  int( 
geons,  and  destroyed  prisoners  for  debt 
his  charge,  treating  them  in  the  most  barl 
and  cruel  manner,  in  hip^h  violation  ant 
tempt  of  the  laws  of  this  kingdom. 

Resolved,  nem.  con.  That  John  Hui 
esq.  late  warden  of  the  prison  of  the  Flee 
during  the  time  of  his  wardenship,  wi 
permit  many  considerable  debtors,  in  his 
tody,  to  escape ;  and  was  notoriously  gui 
great  breaches  of  his  trust,  extortions,  < 
ties,  and  other  high  crimes  and  misdeinc 
in  the  execution  of  his  said  oifice,  to  the 
oppression  and  ruin  of  many  of  the  subjc 
this  kingdom. 

Resolved,  That  it  appears  to  this  11 
That  James  Barnes  was  an  agent  of,  ai 
accomplice  with  the  said  Tikoinas  Bamt 
in  the  commission  of  his  said  crinu's. 

Resolved,  That  it  ap|>ears  to  this  II 
that  William  Pindar  was  an  agent  of,  ai 
acc<impltce  with  the  said  Thomas  Bauil 
in  the  commission  of  his  said  crimes. 

iiesolved.  That  it  appears  tu  this  11 
that  John  Evcrt'tt  was  an  anient  of,  an 
accomplice  with  the  said  Thoaias  BamL 
in  the  commission  of  bis  said  crimes. 

Res'jlved,  That  it  appears  to  this  11 
that  Thomas  King  was  an  a^rf^Qt  of,  ai 
accomplice  xi  itii  the  said  Tliunias  Banifa 
in  the  commission  of  his  said  crimes. 

Resolved,  tiem.  can.  That  nii  humhh 
dress  be  presented  to  his  majesty  that  be 
be  graciously  plfased  to  direct'  his  attoi 
general  forthwith  to  prosecute,  in  the 
effectual  manner,  the  said  Thomas  Bamb 
for  his  said  crimes. 

Resolved,  nem.  con.  That  an  humble 
dress  be  presented  to  his  majc-stv  ilnii  hi 
be  graciously  pleased  to  direct  bis  attoi 
geucral  foruiwith  to  prosccutei  in  Ui« 


309] 


Trial  nfJohn  Htiggim. 


A.  D.  n2<>. 


[310 


■ffflclml  mtDner,  the  said  John  Hugvius  for 
a:4  cnincs. 

Rnolredy  That  an  humble  aiMress  be  pre- 
KMr^  to  hm  mHJcstv  that  be  will  be  ^raciuusly 
plttifd  to  direct  liis  attomry-f|;eneral  forth- 
with 10  pr09t!cute,  iotbe  ODost  c flertiinl  manner, 
ihcuid  James  Barnes,  William  Piniiar,  John 
IwMI,  and  Thomas  King,   for   their  said 


€Msed,  That  ttie  said  Thomas  Dambridjcfe 
It  SHunitted  close  prisoner  m  his  niaiesty's 
!■(  af  Newgate,  and  that  Mr.  Speaker  do 
■H  bis  warrants  acroriiin&^ly. 

Mrrrd,  That  the  said  John  Hugrgins,  esq. 
Iresninitted  close  prisoner  to  his  maitntjr's 
p«l  of  Newgate,  and  that  Mr.  Speaker  do 
■SK  his  warrants  according! 3' . 

Oirdered,  That  the  said  James  Barnes  be 
csanitled  close  prisoner  to  his  majesty's  gaol 
•TNevsmte,  and  that  Mr.  Speaker  do  issue  his 
vmiBla  accordinglv. 

Oidcred,  That  the  said  William  Pindar  be 
t— miued  dose  prisoner  to  his  majesty's  gaol 
tf  Newgate,  ami  that  Mr.  Hfieaker  do  issue  his 
vmants  accordingly.* 

Oidered,  That  the  said  John  Everett  be 
■■■itted  dose  prisoner  to  his  majesty's  gaol 
tf  Vrwgate,  and  that  Mr.  Speaker  do  issue  his 
■euordingly. 


Ordered,  That  the  said  Thomas  King  be 
committed  dose  prisouer  to  his  majesty's  (^ol 
of  Newgate,  and  that  Mr.  Speaker  do  issue 
his  warrants  accordini^ty. 

Ordercil,  firm.  con.  That  leave  l»e  given  to 
bring  in  a  Bill  to  diMilde  the  said  Thomas 
Bam  bridge  to  hold  or  execute  the  otHce  of 
warden  of  the  prison  of  the  Fleet,  or  to  have 
or  exercise  any  authority  rdating  thereto ; 
and  that  Mr.  0(;lethnri>e,  Mi*.  Earl,  the  loni 
Percivall,  and  Mr.  Hughes  do  prepare  and 
bring  in  the  same.* 

Ordered,  nem.  con.  That  lea?e  be  given  to 
bring  in  a  Bill  for  better  regulating  the  prison: 
of  the  Fleet,  and  for  more  effectual  i^event- 
tng  and  punishing  arbitrary  and  illegal  prac- 
tices of  the  wanlen  of  the  said  prison ;  and 
that  Mr.  Oglethorpe,  Mr.  Cornwall,  Mr.  Glan- 
▼ille,  and  Mr.  Hughes  do  prepare  and  bring  in 
the  same. 

Which  Bills  passed  into  a  law. 

They  also  enquire«l  into  the  state  and  coddi- 
tion  ot  the  Marshalsea  prison,  and  ordered  a 
prosecution  against  William  Acton  for  murder. 
See  the  fdlowing  Cases. 

*  As  to  some  of  the  proceedings  hereupon, 
see  4  Haiseli's  Precedents,  title  Iropeachment, 
chap.  3. 


479.  Tlie  Trial  of  John  Huggins,*  esq.  Warden  of  the  Fleet  Prison, 
for  the  Murder  of  Edward  Arne,  at  the  Sessions-House  in 
the  Old- Bailey,  May  21,  before  Mr.  Justice  Page,  Mr.  Baron 
Carter,  and  others  his  Majesty's  Justices  :  3  Gjeokge  IL  a.  d. 
1729.t 


Tuetday^  May  20, 1729. 

Proclamation  was  made  for  all  persons  cou- 
CRBcd  to  attend. 

CL  nf  Arr,  \  OU  good  men,  that  are  im- 
yiaaellcd  to  enquire,  &c.  answer  to  your  names, 
ladsafe  your  tines.  John  Huggins,  hold  up 
%hand.    (Which  he  did.) 

CUrk,  Thou  standest  indicted  hy  the  name 
•f  Jeba  Huggins,  esq.  warden  of  the  Fleet,  Aec. 
[The  Indictment  being  inserted  with  the  Spe- 
ciii  Verdict  at  the  end  of  tliis  Trial,  is  omitted 
^.]     How  sayest  thou,  John  Huggins,  art 

•  See  Fitz^ib.  177.  1  Barn.  358,  396.  S 
^  882.  S  liord  Raym.  1574.  East's  Pleas 
■f  the  Crown,  chap.  5,  §  92.  See,  too,  8  Term 
Bip.  457,  and  the  Cases  which  follow  this  Ar- 
tde.    tier,  too,  3  P.  Wms.  494. 

t  These  Trials 


of  Huggins,  Bamhridge  and  |  i^^"  ™rown, 
were  all  taken  in  shirt- hand  by  Mr.    P«t«  Sujoumey, 
I  to  the  Committee  api^nted    T°^™r.P'^' 


like  BkCDD,  (Clerk  to  the  Committee  appointed 
kcoqmre  into  the  gaols  of  the  Fleet,  Narshal- 
■a,  4w.)  who  in  nis  life-time  asked  200/.  for 
it  csyy  ofthea.    jForawr  JBtfi^ioii. 


thou  guilty  of  the  felony  and  murder  whereof 
thou  stamiest  indicted,  or  Not  Guilty. 

Huggins.  Not  Guilty. 

Clerk.  How  wilt  thou  be  tried  ? 

Huggins.  By  Gi>d  and  my  country. 

Clerk,  God  send  thee  a  good  deliverance. 

Wednesday f  May  21. 

Proclamation  was  made  for  information. 

Clitk.  Thou  the  prisoner  at  the  bar,  these 
men  that  thou  shah  hear  called,  and  personally 
appear,  are  to  pass  bet^reen  our  sovereign  lord 
the  king  and  thee,  upon  the  trial  of  th}'  lite  and 
death;  therefore,  if  thou  wilt  cballeuge  them, 
or  any  of  them,  thy  time  to  speak  is  as  they 
come "^ to  the  book  to  be  sworn,  before  they  are 
sworn. 

Jury. 

Philip  Frusliard,  Thomas  Clayton, 

John  Hoar, 
Martin  Wardell, 
Richard  Pitt, 
John  Milward,  John  Price, 

Daniel  Town,  James  King, 

Clerk.   John  Uuggitis,  bold  up  thy  hind. 


311]  3  GEORGE  n. 

OVhich  he  did.)  Yoo  of  the  jury  look  upon 
the  prisoner  (and  was  goings  on.) 

Muggins,  M V  lord,  the  disUoce  is  too  ^^reat 
to  be  hf  ard :  1  desire  I  may  come  to  the  inner 
bar;  for,  rov  lord,  when  any  niGonTenieuce 
happens,  it  is  the  constant  rule  to  admit  the 
prisoner  to  come  there :  it  was  done  in  the  Case 
of  Sanders  and  Clifton.  • 

Mr.  Just.  Jfage.  Whenever  the  Court  con- 
cei?GS  an  inconvenience,  it  has  been  allowed  : 
but  I  csDiiot  allow  it  till  then. 

Clerk.  You  trentleinen  of  the  jury  look  upon 
the  prisoner;  he  stands  indicted  by  the  name 
of,  &c. 

Prout  the  Indictment  muta^u  mutandii, 

Huggim.  1  must  desire,  mv  lord,  to  have 
the  indictment  read  in  Latin.  (VVhich  was  ac- 
oonlingly  done.)* 

Mr.  Holland.  (Member  of  parliament  for 
Chippenham.)  My  lord,  and  you  ^ntleroen 
of  the  jury,  I  am  of  counsel  for  the  kingf ;  and 
this  is  an  indictment  against  John  Huggins,  for 
aiding  and  abetting  James  Barnes  in  the  mur- 
der of  Edward  Arne ;  that  John  Huggins  was 
warden,  and  one  James  Pames  was  then  his 
agent,  who  did  in  November,  in  thf  11th  year 
or  his  late  majesty,  make  an  assault  upou  Ed- 
ward Arne,  and  took  Arne  involuntarily,  and 
confined  him  in  the  strong  room  (without  the 
eoiofort  of  lire,  olose-stool,  or  other  utensil), 
built  near  the  place  where  excrt*ments  are 
thrown  out,  a  place  very  unwholesome,  and 
most  dangerous  to  the  health  ;  that  Arne  fell 
sick  in  the  said  room,  and  languished  till  the 
7th  of  December,  and  then  dieil;  that  Hug- 
giuR,  through  l)i«  cruel  dis|K)sition,  l»eing  an 
opjir(>t»sor  of' the  prisoners,  di.l,  &c. 

8crj.  Ches/iitc.  My  lord,  and  you  gentlemen 
of  the  jury,  James  Barnes,  who  stands  indicted 
for  the  murder  of  £ilward  Arne,  is  tied  from 
justice ;  anil  John  Hoggins  the  prisoner  at  the 
liar,  also  btoiids  indicted  for  aiding  and  abetting 
in  the  said  fact.  He  was  then  warden  of  the 
Fleet,  and  had  the  custody  and  care  of  the  pri- 
soners then  committed  to  his  charge ;  there- 
fore it  will  be  necessary  to  let  you  know  what 
bounds  the  law  sets  to  gaolers,  and  In  prisoners. 
The  law  sets  fences  to  them  both:  the  gaoler 
is  to  be  protected  in  his  duty,  supported  and 
niaintained  in  it;  and  it  is  juitifiable,  if,  in  de- 
fence of  himself,  he  destroys  a  luaii,  and  com- 
mits an  act  of  felony  :  on  t'iie  other  hand,  if  by 
any  unnecessary  tyranny,  or  restraint,  any  of 
the  prisoners  come  by  u*n  uniiriiely  death,  it  is 
murder  in  the  gaoler ;  and  this  lost  is  princi- 
pallv  nccesHary  for  your  attention. 

F^duard  Arne,  on  the  12th  of  May,  ir25, 
wa'i  committed  upon  mesne  process;  he  was 
a  quiet,  peact'sihle,  and  inuflPi-nsive  man,  and 
coutiuued  i;o  till  Septeml^er  in  that  year,  ihe 
gcntlrinan  at  the  bar,  not  com ent  with  'iii'  tuMne 
Kccurity  that  his  predtcrssors  hud,  took  it  in  his 
bead  to  innke  a  strong  room,  which  was  built 
about  three  months  before  the  death  ot  Edward 


Trial  of  John  Huggins^ 


[312 


*  See  A  Note,  i A  foi.  19,  p.  1998. 


Arne ;  it  was  like  a  vaolt,  boiU  Of«r  the  oon- 
mon  sewer,  near  a  kiystall,  where  the  filthy 
matter  was  lodged,  nothing  but  bridDi  and 
mortar,  not  tiled  or  pointed  ;  and  in  thia  ooe* 
dition,  about  September,  one  Barnce,  aervaat 
of  the  defendant,  came  to  the  said  Arne,  M  ha 
was  sitting  in  the  cellar,  rushed  upon  hioa,  aid 
took  him  away  to  the  dungeon,  a  place  v^bcM 
nobody  had  been  put  in  before;  in  this  nii 
place  of  restraint  he  was  confined,  though  l» 
was  in  a  quiet  condition :  there  was  no  fire»  mm 
flre-place,  no  light  but  through  a  hole  ever  the 
door,  and  a  little  hole  by  the  aide,  big  eoeadi 
to  put  a  quart  pot  in  at ;  there  waa  not  Im 
want  only  of  fire,  or  fire  place,  but  there  mm 
no  chamber-not,  no  convenience  for  the  eMa  af 
nature,  so.  that  it  roust  fall,  and  be  convene 
with  it :  the  place  was  so  moist,  that  dropa  qf 
wet  ran  down  the  wall  The  roan  immediaisly 
lost  his  voice,  his  thn»at  was  swelled,  and  hm 
clothes  rotted  with  the  dampneas  of  the  placi^ 
and  the  poor  man,  huving  a  feather -bed, 
into  it,  and  the  feathers  stuck  ckiae  to  bin.,  ( 
in  this  condition  he  lay;  but  one  day,  the 
being  open,  he  got  out,  and  ran  into  the 
mon  hall ;  he  looked,  gentlemen,  mecc  like  n 
feathered  fowl,  than  an  human  creatare.  Thii 
waa  represented  to  Mr.  Hoggins,  who  gene^ 
rally  Uved  in  the  country,  and  did  net  oome  li 
the  gaol  so  often  as  he  ought ;  but  at  one  tiiB% 
when  he  was  at  the  prison,  he  aaw  tbe  HMjk 
and  the  poor  man  just  saw  him,  his  eye  fal( 
the  door  was  cloi>eil,  and  he  died :  the  wsidi^ 
gentlemen,  bad  the  door  shut,  and  ordered  him 
to  be  lucked  up,  and  he  continued  so  locked  m 
from  September  till  the  80th  of  October;  aai 
it  is  wonderful  to  think  (if  he  had  not  been  n 
man  of  a  very  strong  frame)  how  he  cookl  have 
continued  there  so  I'-ng.  It  moved  the  eeen- 
passion  of  his  fellow- prisoners,  who  applied  la 
have  him  released  out  of  that  place,  but  that 
not  being  done,  a  little  care  was  taken  toatp 
tend  him.  Gentlemen,  at  the  time  when  Mr. 
Gybbon  was  deputy,  some  of  the  priaonen 
askefl  him,  Why  he  did  not  take  care  ot'  Arne, 
fertile  man  cannot  speak?  And  anawer  waf 
made  by  Barnes,  Let  hint  die  and  be  damned  ; 
and  this  was  in  the  prcsent*e  of  the  warden* 
Gentlemen,  1  must  observi.  lo  you.  that  for  ee- 
cnrity  of  the  lives  of  prisnuers,  the  corooer^ 
inquest  ought  to  sit  upon  ihem,  to  see  if  may 
marks  c<HiTd  be  found  to  give  an  inforniatioa  u 
the  cause  of  death,  but  this  was  not  done:  ibia 
is  the  tiubstance  of  the  evidence,  which  cnnnaC 
be  aggravate<l. 

Ait.  Gen.  (sir  Philip  Yorke,  afWrwarda  ceil 
of  Hardwick  and  lyird  Chancellor).  My  lord, 
and  you  i;ent!enwn  of  the  jury,  I  am  ot  coun- 
sel for  the  king,  and  this  proseGuti<>n  is  the 
cfftfCt  of  a  useful,  compassionate  enquiry  ooo- 
cerning  the  gaols,  so  it  was  found  nccesaery 
to  bring  the  cause  liefore  you,  that  gaolers  OMy 
be  punished,  who  have 0|i|M>riunity,  and  bevn 
endeavoured  to  oppresa  the  imfortuuaie 
■iider  their  charge  and  |»ower.  It  ia 
there  ahonld  be  gaols  awl  prisons,  and  that 
aona  should  be  under  confinement  i  but  mtitm 

1 


1]  for  the  Murder  of  Edward  Arne. 

■riaNlHK  ii  io  tlidr  power  to  CMnmii  op- 
Hl^     IMBWtulcruclliea,  Io  the  kai  of  tfaa  livu 


A.  D.  1199. 


tSM 


WH  Aitv*.  Al  thM  time  e* cd  tbs  prwoner  niv 
him  laQgnuh  ;  hit  speech  wu  lout,  nod  tfaea 
b«  Ungublied,  and  cuaunued  ia  Ihe  duDgeon 
till  tbt:  time  «f  bis  deatli ;  thu  will  app«tr 
cltfviy  by  tbe  eTidence,  (bit  Le  dieri  in  duraw, 
aud  ibat  the  di4tein|tcr  (here  coatracted  wa* 
ibe  OGcaaion  of  hii  death.  The  next  eonai- 
deraiiuD  ia,  who,  and  what  was  lUe  occaiion  of 
hit  death  ;  it  it  the  doty  of  ths  gaoler  to  ban 
a  coroner's  iuquett  la  oof  uire  into  tlie  death  t£ 
a  pritnaer,  foT  hit  own  justili cation,  who,  hy 
haTing'  tiie  cududv  or,  and  the  ttower  ajet  kw 
priMDen,  nay  deatmy  tlieia ;  ttietefore,  if 
there  was  do  particular  reanoa,  why  thould  it 
Dot  Itavfl  beea  done?  Though  he  raaaot  pi«- 
Icud  to  thew  a  (larticular  onler  why  be  did  not. 
When  I  OMiaider,  that  uotbinif  cguld  badOM 
but  by  his  authority,  DOtbing  dune  but  by  bia 
direction,  tLit  wan  bis  (Mriicular  ordar. 

If  b"  wbu  was  Ibe  |irinci|ial  gaoler,  wh» 
bad  tlie  authority  to  coofioe  oiio,  and  ia  dii- 
charge  bim  froui  an  iinprojier  coDfiuenenl,  wb* 
saw  him  there  did  not  relesK  bim,  but  iiMlMd 


imbhie  brick  and  nortar:  opan  wkat  diet  in  duress  of  the  t^auler  by  bard  enpflw-. 
MMIailaNluiJl,  tbf  prisuBcr  will  gireyou  menl,  in  •  cruel  mannvr,  uaueeesaary  to  (ba 
■i^RM.  it  lie  liBil  Buy  autbaritjr  for  bjild-  gauter'i  safe  caWody,  it  is  death  by  la*  ;  if  lb* 
■i  Otin^  are  lu  take  care  ol  prisoaera,  gnoler  ia  not  aosnerable  fur  tliw  act,  wbal 
■■■■•iKiUdaii&t^iiB  10  putlbcm  in;  tbe  needii  the  dead  pMWJOt  Io  be  enquired  after  by 
*fc  *«"  ou  lit},  bui  Tcrydsmp  and  no-  i  ajuryf  Justice  ouiflil  be  d'loe,  iel  it  fall  ob 
^^■Mt,  «>  uiually  sneh  placet  oiusi  he.  wlioinil  will;  aud  I  do  not  doubt,  botthajurf, 
wlititticiriihtamling  in  ibe  cellar  iiMfeii'  I  for  Ihevakeol'lheir  oalbs,  will  liud  liiin  ifuiky. 
Wf,  Stnn,  wlia  was  eutriiKcd  with  the  Sol.  Gea.  (Hou.  Hr.  Talbot,  alUrwank  k 
■Mlfltf  |irisi)net«,  Bei/eil  him  and  p«l  him  Peer  and  I»rd  Chapcellor.)  We  will  call  sor 
■Mfln, ind  he  wasihprepiitwitliont  any  etideucrto  proie  the  facta. 
^Wifpmigiaii  la  sHKiain  life;  there  w 


ce  of  the   alBiott  op- 

tt  cruelty.    Hr.  Hug- 

_.._  Fleet  prison,  and  had 

cuHaJy  of  the  priaonen,  and 

Ml^paull),  nr  by  liis  deputy,  to  take 

■  MpiB,  >iiiiu  is  answerable' for  tbem  : 

~  "'    '   itiie  came  a  priaoner  io  May 

iauad  ibere  lilt  he  died.     At  bis 

I,  be  liKlged  Willi  -one  Bcbcrt 

f  difference  bappeniug  betweeu 

tek  Ku  uiiiKd  out  of  that  room,  and  Iaj 

.    aditniuiiiialitll.    This  nabappy  raao  wsa 

I  alakiLHilKnt  ia  bii  aeuacs,  which  his 

■■I  al|;lil  reisanohlv  oeoaaion ;  be  was 

fuiet  oMu  ;  nt  about  tbis  lime, 

t*  jjchetiie  of  baTioe  a  pritou 

.■hub  »  as  the  ooeaaMH)  ofibeir 

f  op^rmioae  u|>oii  ibe    prisoaera. 

inaninas  tbeoereotcdin  (ha dud- 

ftniih,  cominouly  called 


iMiblc  w],fre  yoo  niiKbt  put  a  liule  driok 
ifltHUKs  III'  bail  an  opportunity  uf 
It.  ami  wiiiieliaiea  nooe.  Undi;r  this 
111  |ieraii>  u»s  krpt,  without  any 
Mo  p.a!<r  nature;  thedescri^ou  it 
iiu  more  evtry  Irady  to  cnmpaHainn. 
•l[u<:eoil  lu  w  iih  him,  and  he  ripped 
crfpi  lotu  il  lo  keep  himself  H-arin, 

litrssiiji'k  to  hia:i  by  reason  of  his 

•*f  bnm^ar^  wiUi  bin  own  ordure,  which 
■W  Ml  a|i|>OTliiiiiiv  of  dnjfl|[  out  of  llie 
m-  Dunau  ilii-  uliule  time  whilat  Arne  wih 
*bal,  Mr, llii^rgius,  wlio  was  then  narili'n, 
[  «t  »>«,  ihou^b  be  ought  to  bate  corae 
'■B'laadbis  duly  retjuirel  him  so  In  do : 
vSoggins  looked  upon  him  thete,  aodaaw 
Wtia  tbai  ooodiiion,  io  tbe  place  built  by 
■tvs  order;  but  the  priaoner,  ao  far  fram 

RUflt  any  relief,  or  maoriog  him  out  of 
afiacmeiit,  orilered  llie  door  to  be  locked 
f  ■  kta  prcBotce,  be  being  warden,  aud  by 
aaalborily.  Tliit  affectiog  cnudilion  tiie 
WMaa  wa«  in,  aud  Jn  tbe  ciiwaraitaikce  be 
■sia,  he  augbt  to  hate  rdierod  bim.  tie- 
•danbcMiant  were  made  to  Gybbon,  and 
kvifaaaersaat*  uf  tlte  warden,  tu  desre  this 
t^ifiy  man  to  be  releaaed  i  lellu:s  were  sent 
Mw  bianiaeraUe  cmtdition,  that  he  vat 
I  likely  to  live,  and  to  desire  that  he  mi^lu 
tm  atitt  m  futyar  «urta|lj  j  but  aalbtng 


Call  Richard  Longbom.     (Who  wat  awoni,  aa 
were  all  ibe  rest  that  appeared.} 

He  produced  a  copy  of  Mr.  Huggiot'a 
patent,  brarin)^  dale  the  S2d  July,  the  19lh 
queen  Aon,  wlucb  U^  proved  to  be  u  true  oo|)y, 
and  Mich  part  of  it  wat  raad  as  prored  him  to 
be  warden. 

Huggint.  Uy  lord,  I  desire  the  Habendum 
may  be  rtad.  by  which  I  hare  a  power  to  ap- 
poiut  a  deputy  or  depuliea  for  and  durjug  inj 
oat  oral  life. 

Mr.  Just.  Page.  I  don't  know  what  use  yon 
will  make  of  it;  but  you  may  call  fur  it  ia 
yourdetieDce. 

JUAert  Bigrave  awom. 

Sol,  Gtn.  Do  you  know  ibe  prisonCTf 

Btermc.  Vpry  well, 

Sol.  Gtn.  Uuw  loagbareyOD  known  hittf 

Bigravt.  I  knew  him  when  J  waaCkrkof 
the  faiiarB,  in  April  17S5. 

Sot.  Gen.  Did  he  aci  i 

Bigratie.  lis  was  warden,  but  did  BOtact; 
Mr.  GybbcD  was  deputy  lo  .Mr,  Huugiiu. 

Sot.  Gen.  Who  conalituted  you  Ckrli  ofliia 
PajwrsP — Bifirave.  Mr.  Hugf^nt. 

Sol.  Gtn.  Were  Ibr  securities  tsken  ia  tba 
aaiue  of  ftlr.  HuggiusP 

Bigrave.  The  security  booda  were  taken, 
and  returns  madeiu  tbe  Dame  of  Hr.Uo^ 


1.4. 


r      -■•■^ 


--        -^-    *'»2 


■    ■  1 


«Z"     . 


1/'. 


•#•■    _ 


--      >* 


I  I 

M 


« . 


«  — — - 


Ff> 


I    •  •     ,1   •'>    n  •f.fi 


I 


'  '     ,•  i  -        --  ^    -IS     ▼  -~-     1 

.      »'.    *      .!  I*    --■-■■  -     '.--•:•*. 'Mis   -■ 

■ '    "        !»•:*■  •..-  .  ni":         ;    n 

■-  -.  •   ■»'  «  \ Jt- z '• '- '■'■    •-'•'     :•■■•-    ':  .  ;- 

••  •      •/   ■»■•.•'  i  •»<:.■■»-■  ■.  5  .  'i-  -—^ 

V  v^/      »«■»   ;  i**  ■     I.*-*  *  A ••--•;    • 

."*  .   ».'  :    ;.'«^  Vi  Mr  'rf-.w:-..      u;. 

»•'•   ;»•  -f'.  .•^r  i«»n  .'•%t<'1  t**   I 

■ 

thff"*     '1  tin  wurrrkiitH  were  gene! 


Jiit  the  Murder  ofEdtioard  Arne. 


▲.  D.  1729. 


[318 


0  office,  aod  signed  and  gealed  in 
Lbey  were  filled  up  by  Mr.  Oyl>bou, 
lod  sealed  by  Mr.  ilu^gins. 

.  Id  whose  name  were  the  war- 
led? 

The  warrants  were  returned  in  the 
!r.  iluggins,  but  by  the  direction  of 

D. 

.   Was  Barnes  my  servant  or  Mr. 
He  was  allowed  to  be  a  servant  to 

D.       ' 

ke  Page.    I  will  ask  a  question 

.  1  must  beg^  leave,  my  lord,   to 
lestion  more,  and  then  will  make 
rations  upon  the  evidence. 
,ce  Page,  It  is  not  proper  to  break 
\  evidence  to  make  any  observa- 

.  This  is  the  grand  point. 
ice  Page,  Whetlier  it  is  or  no,  that 
mod.  If  you  insist  u|)on  makinfi^ 
kfl  now  you  shall ;  bin  I  think  it 
yom:  prejudice,  tor  by  that  you  will 
d  from  making  your  remarks  upon 
'  the  evidence. 

.  My  lord,  1  will  then  submit. 
ice  Page.  If  you  will  ask  Mr.  Bi- 
Dore  questions,  you  may  proceed. 
.  Did  you  hear  of  any  ill-usage  from 
oan  (meaning  Mr.  Arne)  P 

I  remember  Mr.  Arne  was  there, 
lew  no  such  man,  and  heard  he  was 
groom. 

.  Did  you  hear  of  any  alteration 
ade  in  the  strong  room  while  Mr. 
lere? 

I  never  heard  of  any  alteration 
time. 

,  Did  not  Gybbon  keep  two  distinct 
le  and  the  same  hutise  ? 

in  the  ycnr  1725  he  did. 
I.  .  Pray  distinguish  nicely  as  to 
ggins,  and  Gybbon,  whether  Barnes 
»loyed  as  watchman  while  Huggins 
il,  and  Gibbon  deputy- warden;' 

lie  was. 

,  Who  put  you  into  your  office? 
Sir.  Uuggins  put  me    into  the 

1  made  an  agreement,  and  was  to 
il  me  out  of  each  day -rule. 

D  Carter,    Who  made  the  agree- 

I  made  the  acfreemcnt  with  Mr. 
id  paid  700/.  to  Mr.  iluggins  and 
I. 

D  Carter,  Who  put  3Ir.  Barnes  in  ? 
Blr.  Gybbon. 

B  Carter,  fiow  do  you  know  f 
1  beard  so. 

CSall  Richard  Bishop. 

Wlial  arc  vou  ? 

was  tipstaff  to  Mr.  Hucfgins,  pre- 
HMpm  came  to  his  utfice,  and 
ll.lSrit.    . 


Sol.  Gen,  Who  was  deputy  then? 

Bishop.  There  was  no  deputy- warden,  only 
Mr.  Dickson,  Clerk  of  the  Papers. 

Sol.  Gen,  When  did  Gybbon  come  there f 

Bithop,  In  the  year4724. 

Sol,  Gen.  What  time  did  Arne  become  a 
prisoner  ? 

Bishop.  In  1724  or  1725,  T  brought  him 
down  from  the  judges  chambers,  and  put  him 
at  the  Vine  as  usual. 

Sol,  Gen.  Why  did  3'ou  not  bring  him  into 
the  prison  ? 

Bishop,  Because  he  thought  to  give  se- 
curity. 

Sol.  Gen.  Was  not  that  a  spunging- bouse? 

Bishop.  Yes. 

Sol.  Gen,  How  long  did  he  continue  there  ? 

Bishop,  About  two  months. 

Sol.  Gen,  Where  did  he  lie,  when  he  went 
into  the  gaol  ? 

Bishop.  When  he  went  into  the  gaol,  1  did 
not  trouble  myself  about  it. 

Sol,  GcH.  Do  you  remember  the  building 
the  strong  room  ? 

Bishop,  I  do  remember  its  being  built  in 
1725. 

Sol.  Gen,  What  sort  of  a  place  is  it? 

Bishop,  1  have  seen  the  outside,  but  n<sver 
saw  the  inside;  1  believe  it  is  built  over  the 
common-sewer,  and  but  a  little  way  from  the 
dunghill;  the  ashes  and  dirt  of  the  boose  is 
flung  down  there. 

Sol,  Gen.  Did  you  see  Mr.  Arne  there  ? 

Bishop,  I  saw  him  once  in  the  long  room 
out  of  his  clothes,  before  he  was  brought  into 
the  strong  room,  and  I  complained  to  Mr. 
Gybbon,  and  said  he  ought  to  be  sent  to  Beth« 
lem,  but  he  put  him  in  the  strong  room. 

Sol.  Gen.  Can  you  tell  of  any  complaints 
made  about  Ame's  being  put  there  ? 

Bishop.  I  did  apply  to  Mr.  Gybbon,  and  said 
it  was  better  to  keep  him  in  his  own  room,  ^or 
if  a  wise  man  was  put  there  it  would  make 
him  mad  ;  and  it  would  have  made  me  mad  if 
I  had  been  put  there  myself;  and  i  heard  Mr. 
Gybbon  speak  to  Mr.  Hopkins  to  acquaint  Mr. 
Huggins,  that  as  Mr.  Taylor  was  one  of  the 
governors  of  Bethleni,  and  Mr.  Hu|;gins's 
friend  and  acquaintance,  he  might  easdy  gft 
him  in  there. 

Huggins,  It  was  no  part  of  the  office  of 
warden  of  the  Fleet ;  but  1  might,  by  a  friendly 
office,  use  my  interest  with  Mr.  Taylor,  and 
that  would  shew  me  more  a  humane  man,  than 
one  guilty  of  cruelty. 

Sol.  Gen.  Did  you  see  Mr.  Huggins  in  the 
gaol,  during  the  time  Mr.  Arne  was  in  the 
strong  room  ? 

Bishop.  1  saw  Mr.  Huggins  there  several 
times,  but  can't  say  whether  then  or  not  when 
Mr.  Arne  was  in  the  strong  room. 

Sol.  Gen.  Was  he  any  way  abusive  ? 

Bishop.  1  never  heard  that  Arne  was  any 
way  abusive,  or  needed  any  such  restraint. 

Sol.  Gen.  What  was  James  Barnes  ? 

Bishop.  He  was  to  take  up  people  that  the 
wardeu  directed  him  to  take  up,  and  acted  .as 


319] 


S  OEORGB  IL 


watchniaD  in  thei^,  and  wm  lerruit  ttiMler 
the  warden. 

Sol.  Gen,  What  time  waa  Arne  pat  id  the 
strong  room  ? 

Buhop.  lie  came  into  the  priaoD  before  the 
alroog  room  waa  bailt. 

Soi.  Gen,  Do  you  remember  when  it  waa 
bnitt^ 

BUhop.  It  waa  built  in  1795, 1  belieTeatthe 
latter  part  uf  the  summer  season. 

M,  Gen,  Do  you  remember  the  time  while 
Ame  waa  there? — Bishop,  I  do. 

Sol,  Gen.  Waa  there  any  thing  of  eonse- 
quence  done  in  the  gaol,  without  the  direction 
of  Mr.  HugginsP 

Bishop,  Nothing  of  couseqnence  was  done 
without  bia  direction ;  but  the  common  busi- 
ness of  the  gaol  waa  done  by  Mr.  Gybbon's 
direction. 

Sol.  Gen*  Did  you  ever  speak  to  Mr.  Hug- 
gins  in  relation  to  Arne's  confinement  ? 

Bishop,  1  believe  I  might  speak  to  Mr. 
Gybbon,  and  1  beliere  I  might  speak  to  Mr. 
Huggioa,  for  1  frequently  did  speak  to  him 
about  business. 

Sol,  Gen,  What  condition  was  Mr.  Ame  in, 
when  brought  to  the  Fleet  f 

Bishep,  I  think  he  was  in  his  senses,  he  was 
inoffensive,  and  I  think  there  wss  no  occasion 
to  confine  htm ;  I  saw  him  several  limes  walk- 
ing about  the  yard,  and  if  he  had  been  confined 
to  his  own  room  anv-body  might  have  looked 
after  him,  even  if  it  nad  been  a  child. 

Ss/.  Gen,  Had  be  any  bed  whilst  in  the 
Strang  room? 

Bishop,  I  think  he  had  no  bed  there,  it  was 
a  dark  place,  I  could  not  see  into  it. 

Sol.  Gen,  Did  Hug^ins  use  to  come  there 
after  Gybbon  was  deputy  ? 

Bishop.  I  saw  Mr.  Huggins  there  several 
times  afcer  Mr.  Gybbon  was  deputy- warden, 
and  Huggins  used  to  give  directions,  during 
the  time  Gybbon  was  his  deputy,  and  Hop- 
kins used  to  bring  orders  to  Mr.  Gybbon  from 
Mr.  Huggins. 

Sol.  Gen,  In  what  condition  of  health  was 
Mr.  Arne  when  he  was  brought  in  P 

Bishop.  He  was  in  a  good  condition  of 
N  kealth,  and  in  his  senses  ;  ami  I  believe,  lieing 
put  in  the  strong  room  in  the  Fleet,  would  have 
killed  sny-body,  and  thai  iliat  forwanled  Arne's 
death,  and  he  would  not  have  died  so  soon  if 
lie  had  not  been  there. 

Huggins.  When  von  Rpoke  to  Mr.  GyNion 
to  apply  to  me  to  make  intei-est  to  the  governor 
of  Bethlera,  whether  it  was  guatenus  wardrn, 
or  only  as  I  was  supposied  tu  have  acquaint- 
ance or  interest  ? 

Bishop.  It  was  l»  apply  to  you  as  warden. 

Huggins.  Were  there  not  women  prisoners, 
and  meu's  wives  in  ttie  gaol  ? — Bishop.  Yes. 

Huggins,  My  lord,  it  was  very  unfit  for  a 
maa  to  go  naked  about  where*  there  were 
women,  and  it  waa  §1  lie  aliould  be  con* 
Ased  somewhere.  Whose  aervant  was  JanKs 
Baraca? 

Biaktj^.  Mr.  Ojkbaii*a. 


Trial  of  John  Huggins^ 

Mr.  Justice  Page.  At  the  time  when 
about  naked,  was  there  no  other  room 
could  have  been  put  in  ? 

Bishop.  There  certainly  were  oChe 
where  be  mifi^lit  have  i»een  put. 

Mr.  Justice  Page.  How  often  have  3 
him  naked  ? 

Bishop.  1  saw  him  naked  but  once. 

Mr.  Btfron  Carter,   You  said  Gybb 
some  directions,  and  Huggins  gave  1 
rections;   now  during  the  time  that 
acted,  did  the  prisoner,  Mr.  Huggins.  | 
directions  as  to  the  m(»ving  of  prisonen 

Bishop.  My  lord,  I  never  meddled  w 
was  done  in  the  inside  of  tlie  prison, 
inform  yon. 

Call  Mr.  John  Cotton. 

At  I.  Gen.  What  ofiicer  are  you  b< 
to  the  Fleet?— Co^^ora.  Clerk  ot  the  ¥ 

Alt,  Gen,  Pray  see  what  time  A 
committed  ? 

Cotton,  He  was  committed  the  13th 
1725>  at  the  suit  of  John  Martin  am 
upon  mesne  process. 

Huggins,  I  desire  he  may  see,  whei 
bec:ime  a  prisoner  P — Cotton.  In  Hilar 

Att,  Gen,  Is  not  Barnes  still  a  priisc 
what  is  beoome  of  him  P 

Cotton.    He  was  a  prisoner,  and 
liberty  of  the  gate;  and  when  the  ord 
House  of  Commons  came  for  taking 
custody,  be  ran  away,  and  Corbet  ha 
voured  to  find  him  out,  but  could  not. 

Att.  Gen.    Was  Arne  charged  in  ex 

Cotton.  No,  he  was  not. 

Call  Mr.  Thomas  Farrington. 

Aft.  Gen,  Did  you  know  Edward  ^ 

Farrington,  I  did,  and  the  first  timt! 
came  into  the  prison,  it  was  l>etween 
and  28th  of  June,  1725.     He  was  sc 
at  the  V^ine  before. 

Att.  Gen,  What  state  of  health  was 

FaYrington,  When  he  cnme  into  1 
prison  he  was  in  a  gotxl  state  of  he 
tree  from  any  sort  of  dclirioiisness,  am 
sa^  him  do  any  ihiug  amiss  to  man, 
or  cliild. 

Ait  Gen.  Do  you  remember  his  be 
finetl  in  the  strong  n>om  P 

Farrington.  1  do  remember  Ins  be 
fined  in  September,  and  that  he  died  in 

Alt.  Gen.  When  was  the  first  t 
knew  of  his  contineinent  ? 

Farrington.  The  first  time  I  ever 
his  being  confined,  I  heard  he  was  ca 
the  strong  room  by  Barnes,  by  the  din 
Gibbon,  dc|»iity- warden  to  the  prisot: 
bar,  and  he  had  lain  bel'ure  that  in  n 
with  Kul>ert  Shaw,  and  upon  some  di 
being  turneil  out  of  that  room,  he  th 
the  common -hall.  U|»on  a  bed  of  I 
which  he  laid  upon  part  of  a  broks 
bedstead. 

Att,  Gen.  Wlien  was  tbe  first  liiM 
Ame  in  the  strong  rooss  f 


»l] 


Jor  the  Murder  of  Edward  Arne. 


A.  D«  1729. 


[S2S 


1.  I  Htw  him  the  very  day  he  was 
pstio. 
Att.  Gen.  What  sort  of  a  place  is  it? 
Furington.    It  is  a  room  arched  o?er  liJce  a 
nuh,  aDil  bad  been  new  erected  about  six 
vedu,  and  the  walls  were  very  damp  and  wet ; 
jta  ught  strike  off  the  drops  with  your  hand 
Hc  lbs  dew  on  the  top  of  the  fgnms  in  a  morn- 
ing; ibere  was  no  wainscot  nor  plastering, 
Ikytvm  some  boards  at  the  bottom,  but  wbe- 
Ihv  oiirely  boarded  I  can't  tell.    It  was  a 
nrilaidied  over,  and  when  Ame  was  carried 
hMiilBd;  there  was  a  window  over  the  door 
llm^rters  of  a  yard  long,  and  another  on 
ikaie  of  the  door  seven  or  dght  inches  long, 
mihm  wide,  and  no  fire- place,  and  the  com- 
Ms-Kwer  runs  under  it. 
Alt.  Gen.  Wliosupplie<l  him  with  victuals  ? 
fvringion.    I  saw  Mr.  Louden  give  him 


Att.  Gen.    Who  kept  the  key  of  the  room  ? 

Icrrington.  Barnes. 

Att.  Gen.  From  the  time  that  Mr.  Ame 
■winlfi  the  prison,  which  was  between  the 
lOlkftBrf  V8th  of  June,  till  he  was  put  in  the 
rotini,  what  state  of  health  was  he  in  ? 

Immgton.  Ue  continued  in  a  good  state  of 
till  a  little  before  he  was  put  in  the 
room,  and  then  he  grew  somewhat  dis- 
;  ami  from  the  time  he  was  put  in  the 
roam  he  altered  every  da  v,  grew  hoarse, 
mi  atltiteould  not  speak,  and  he  grew  weaker 
id  vtakcr  every  day  ;  about  the  beginning  of 
Offcerbe  hwt  bis  voice,  he  grew  then  delirious, 
ttinpl  o|ieD  his  bed,  and  crept  into  the  fea- 
tbm,  lod  fine  day  came  to  the  chapel  with  ex- 
cicanit  and  feathers  sticking  ubout  him  like 
a  niifpye,  lieing  forced  to  case  nature  in  that 
p'ace;  ind  after  that,  I  saw  the  prisoner  at  the 
ur,  led  Hopkins,  looking  into  the  strong 
imb  (die  door  being  open)  upon  Arne,  and 
Anenas  lyinc  in  the  bed  ript  open,  and  covered 
■uch  'Jynix  as  high  as  hisi  navel. 

An.  Gen.  Dill  you  hear  Arne  speak  ? 

i'%rnn^toa.  He  was  very  hoarse,  and  could 
BK  fpeak,  but  lilted  up  his  eyes,  and  looked  at 
MLllut^i^iu't. 

Ait.  Gen.  Did  HufTgios  then  sec  him  ? 

Farrin^tun,  Mr.  llugt*ins  must  see  him,  if 
k»u  rpii  blind. 

An.  Gin,  Did  yon  hear  them  speak  ? 

hrriHffton.  Mr.  Hoggins  and  Hopkins 
*^leretf ,  but  I  did  not  hear  what  they  said ; 
ktHa^ifins  shook  his  hoad,  then  Barnes  shut 
^duor,  and  Hn^^gius  and  Hopkins  were  then 
Ngauray. 

Mi.  Gen.  How  long  after  was  it  before 
Inedieil? — Fnrrington.  About  fourteen  dayh. 

Mi.  Gen.  Did  you  see  Aru«  Initwcen  this 
^•f  Hiiffgiu*  being  there  and  his  death  ? 

hrringlon.  I  saw  him  the  morning  before 
nM^  tnd  at  that  time  he  was  so  weak,  he 

^  not  stir  any  way,  but  there  lay  gaping 

vbe. 

Ml  Gen.  U'hat  was  the  occasion  of  his 
M  ia  that  languisbing  condition  ? 

tirrim^tiin.  Arne'i  coBfinemeat  was  the 
TOL  XVII. 


occasion.  I  was  in-the  strong  room  three  days 
myself  with  one  Smith,  my  legs  were  so 
swelled,  that  the  small  wus  as  big  as  my  thigb^ 
and  1  never  knew  a  day's  sickness  till  tliattime^ 
and  if  I  bad  continued  a  week  longer  it  would 
have  killed  me,  and  I  was  forced  to  buy  paper 
to  ease  nature  in,  and  fling  it  out  of  the  window. 

Att.  Gen.  What  is  tlie  situation  of  that 
room? 

Farringfon.  Its  situation  is  at  the  furthest 
part  of  the  prison  northward,  and  there  is  a 
sewer  under  it,  into  which  runs  the  water  from 
the  pump  to  carry  off  the  excrements  of  the 

Erison,  which  are  emptied  into  it,  and  the  dung- 
ill  was  then  about  six  yards  from  it. 

Att.  Gen.  What  distance  is  there  between 
the  strong  room  and  the  dunghill  now  f 

Farrington.  About  eight  yards,  and  all  the 
nuisance  of  the  house  is  flung  there,  and  them 
are  very  bad  smells. 

Att.  Gen.  What  was  the  occasion  of  Um 
death  of  Arne? 

Farrington.  I  think  it  was  the  strong  room 
was  the  occasion  of  it,  for  it  was  enough  to 
kill  the  strongest  body. 

Att.  Gen,  Did  Arne  die  there? 

Farrington.  He  did,  and  Mr.  Huggins  al- 
ways said  he  had  authority  to  put  persons  in 
tlie  strong  room,  or  irons,  which  1  can  prove 
under  his  hand  (and  was  going  to  pidl  out  a 
paper,  which  not  being  allowed  as  evidence,  he 
desisted.)  I  saw  Mr.  Huggins  a  second  time 
walking  upon  tlie  Bare  with  Gybbon  and 
Levinz,  between  the  hours  of  eleven  and  one,  a 
week  or  a  fortnight  alter  which  he  was  at  the 
strong  room, 

Aic.  Gen.  IIow  long  did  Mr.  Huggins  stand 
looking  upon  Mr.  Arne  in  the  strongroom  ? 

Farrington.  Ahout  three,  four,  or  five 
minutes,  and  he  then  stood  looking  at  the  door, 
as  I  now  .Mand  looking  at  the  counsel. 

Att.  Gen.  Was  Ame  let  out  of  the  strong^ 
room  afterwards? 

Farrington.  I  never  heard  that  Ame  was 
afterwards  out  of  the  strong  room  till  he  die<l. 

Huggins.  Did  iiol  you  make  some  aiiidavits 
by  way  of  complaint  to  the  Court  of  Common 
Pleas i* — Farrington.   Ves. 

Hugging.  Please,  my  lord,  to  ask,  Whether 
or  not  Mr.  Arne  was  meutioned  in  that  com- 
plaint  that  he  made  ? 

Farrinf^ton.  I  never  made  but  three  afKdavits, 
two  of  which  1  have  in  my  hand  in  print,  hut 
don't  remcmlier  Mr.  Arnt's  being  muotioucd 
in  either  of  ihem. 

Huggins.  My  lord,  the  affidavits  tend  chiefly 
to  the  sending  of  coflins  in.) 

Mr.  Just,  raiic.  If  \:>u  intend  to  make  any 
une  of  those  attidavits,  they  must  be  produce*! 
and  read. 

31  r.  Richard  Tulthorpc  sworn. 

Att.  Gen,  Did  you  know  Edward  Arne? 

Fidth^rpe.  I  did,  I  was  a  prisoner  then  my- 
self, he  was  brought  in  the  latter  end  of  Augu^^t^ 
and  I  remember  him  a  prisoner  In* fore  he  was 
confined  ia  the  strong  room  i   i  being  ia  the 

Y 


StS] 


3  GEORGE  IL 


cellar,  one  Barnes  and  two  or  three  other  aer- 
▼anta  of  the  wardena  took  bim  by  TioleDce  and 
carried  Kim  there. 

Att  Gen,  Had  you  been  in  his  company , 
and  bad  conTersation  v^ith  bim  ? 

FuUhorpe.  1  had  several  times* 

Ait.  Gen.  Was  he  disorderly  ? 

Fulthorpe.  He  might  be  a  little  in  liquor, 
but  he  did  nothing  to  offend  any  one,  and  gare 
DO  disturbance  to  the  company.  He  was  car- 
rieil  by  Barnes  into  the  strong  room. 

Alt.  Gen.  What  sort  of  a  place  is  the  strong 
room? 

Fulthorpe.  It  is  a  place  like  a  dungeon,  with 
A  hole  on  the  side  big  enough  to  put  in  a  full 
pot  of  beer. 

AU,  Gen.   How  big  is  the  room  P 

Fulthorpe.  The  room  is  about  half  the  big- 
ness of  the  Court  where  the  counsel  sit,  and 
atands  near  the  duncrbill,  and  the  sewer  runs 
under  it.     I  saw  it  opened. 

Att.  Gen.  What  was  over  the  common 
ptwer? 

Fulthorpe,  There  were  boardslaid  loose  over. 

Att,  Gen.  What  was  between  the  common 
•ewef  and  the  boarda  P 

FuUharpe.  Nothing.  The  walls  were  green. 
It  was  not  tiled  in,  and  had  scarce  been  built 
above  a  week,  and  was  as  wet  as  any  thing 
could  be. 

Att.  Gen.  Who  put  Ame  into  the  strong 
toomP 

Fulthorpe.    Barnes  and  some  others,  then 

Crisoners,  who  acted  under  the  warden,  took 
im  out  of  the  cellar,  put  him  in  there,  and 
locked  him  up. 

Att.  Gen.  Did  you  see  Mr.  Hnggins  during 
the  time  Ame  was  there  confined  P 

Fulthorpe.  I  saw  Mr.  Huggins  twice  there. 
I  saw  him  at  the  strong  room ;  he  went  along 
with  Gybboo  and  Hopkins,  and  Mr.  Huggins 
laid  bis  hand  upon  the  door,  and  looked  in,  the 
door  being  open. 

Alt.  Gen.  How  long  was  he  there  P 

Fulthorpe.   A  minute  or  two. 

Att,  Gen.  Who  was  there  besides  P 

Fulthorpe.  Several  belonging  to  the  Fleet. 
I  believe  Barnes  was  there. 

Ati.  Gen.  How  long  before  the  death  of 
Anie  ?'--'FuUhorpe,  About  a  month. 

Att.  Gen,  What  condition  was  Ame  in  at 
the  time  he  was  put  in  there  P 

Fulthorpe.  When  he  was  put  in  there,  he 
was  a  little  out  of  the  way  when  fuddled,  but 
when  sober  as  well  aa  any  man ;  when  1  came 
to  the  door,  there  used  to  be  a  smell  enough  to 
atrikc  one  down. 

Att,  Gen.  How  long  was  Ame  in  the  strong 
room,  before  you  saw  him  there? 

Fulthorpe.  I  went  the  next  morning,  and  at 
aeverai  other  times. 

Att,  Gen,  How  long  was  Arne  there  P 

Fulthorpe,  About  six  weeks. 

Att.  Gen,  What  condition  waa  he  in  when 
Uuggins  looked  upon  him  P 

Fmitkorpe,  Ha  wta  ?«ry  ill  when  Hnggint 
laakad  upon  jam/ 


Trial  of  John  HugginSf 

Att.  Gen.  What  do  yoa  think  waa  tb 
aion  of  bb  death  P 

Fulthorpe.  The  confinement  and  the 
ness  of  the  room  gave  him  his  death. 

Att.  Gen.  Had  Mr.  Huggina  spoke 
Ame  taken  out? 

Fulthorpe.  He  had  not,  for  the  dc 
shut,  Mr.  Huggins  being  then  present. 

Att.  Gen.  How  came  you  to  be  then 

Fulthorpe.  I  wanted  to  speak  to  Mr 
gins  about  business,  for  the  payment  of 
drawn  upon  Huggins  by  one  Lewis. 

Att.  Gen.  How  came  Arae  to  cut  hia 
pieces,  and  creep  into  the  feathers  P 
.    Fulthorpe.  It  was  occasioned  by  his  ( 
raent;  there  was  no  fire  there,  and  I 
the  confinement  was  the  occasion  of  hit 

Huggins.  How  oflen  did  you  know 
out  P — JWthorpe.  Two  or  three  times. 

Huggim,  How  long  were  you  a  p 
aflerP 

Fulthorpe.  I  was  discharged  by  the 
Grace. 

Att.  Gen.  How  came  you  to  be  pre 
the  time  Mr.  Hoggins  looked  into  the 
room? 

Fulthorpe.  I  waited  for  an  opportt 
speaking  to  him  about  a  note. 

Mr.  Tudor  Smith  sworn. 

Sol.  Gen.  Did  you  know  Edward  An 

Smith.  1  knew  Mr.  Arne  very  well,  a 
he  was  in  the  Fleet  prison.  I  remem 
time  of  his  coming  into  the  Fleet  prii 
was  with  him  in  the  sponging- house,  ai 
he  was  carried  into  the  Fleet  prison. 

Sol.  Gen.  Where  did  he  lie  P 

Smith.  In  the  room  of  one  Robert  Shi 
continued  there  about  a  fortnight  oi 
weeks ;  but  upon  some  quarrel  was  turn 

Sot.  Gen.  When  Arae  came  out  of  th< 
was  not  his  bed  turned  out  with  him  ? 

Smith.  It  was;  upon  which,  he  thei 
the  common -hall  for  some  time. 

Sol.  Gen.  Did  you  see  Arne  carried 
strong  room  ? 

Smith,  I  was  in  the  cellar,  when  he  \i 
ried  to  the  strong  room ;  Barnes  toe 
away. 

Sol.  Gen.  What  was  Barnes? 

Smith,  I  apprehended  him  to  be  Mr 
gius's  servant. 

Sol.  Gen.  What  did  you  see  done  by  I 

Smith.  I  did  sae  Barnes  come,  and  tal 
by  the  collar,  and  he  said.  He  must  g< 
with  him.  Arae  said,  Where?  Barnes 
No  matter  where,  you  must  go  along  wi 
and  the  next  monung  I  saw  Arae  in  the 
room. 

Sol.  Gen.  What  state  of  health  wa 
when  carried  there  ? 

Smith.  He  was  in  an  ill  state  of  healt 

Sol.  Gen.  What  sort  of  a  room  was  i 

Smith,  It  was  newly  built,  very  dam| 
nauseous  place.  I  knowing  him  befe 
under  more  than  common  concern,  #0 
Araa  how  ha  did?    And  he  said  Ban 


^  the  Murder  nf  Eihmrd  Arm,  A.  D.  1729. 

Smith.  1  received  ao  aoBwer  tVoiu  Mr. 


uknl  liim  if  lie  had  a  bed  ? 
H«aiilbebMt  nobrdi  but  the  nut  day  a  bed 
■t>  imii|;b(  to  hil». 

HtL  ((«•.   Ilov  lone  did  he  lie  there? 

Smui.  A  moDtb  or  six  weeks ;  I  tiwied  him 

U.  Cm.  Wi8  lli«re  any  lirp-|ikce,  any 
0»ik,  ar  Aoy   thing  oeceuary  tu  ease  na- 

iiiA  There  vnu  no  (ire-place,  no  candle, 
Mt^Btctwjry  tooseimtureiu, and  hewui 
kriado  all  thai  nature requiTPd  (here;  and 
■^itiaie,  when  I  carried  drink,  nieai,  ur 
A*kiB,  1  hare  been  forced  to  hold  my  nnae. 

U.  Gn.  What  place  was  tliere  tu  let  iu  the 

SjwA.  Tbere  was  a  place  oTer  the  door  witli 
•  loot  in  letigtb,  anil  another  bole 

' 1  a  fool  and  bull*. 

Dill  yoM  give  any  rolica  lo  Mr. 

'  :  L.i-  condition  litis  muii  was  in  ? 

^hh.    iJnriiigbern  B  pritoiicr  some  lime,  1 

k    ^ftii4  Ivr  tliB  benefit  of  the  rules,  and  he  re- 

I    tBifi  lat  IV>r  the  iiberly  of  the  rules,  and 

I    IhffaiH  and  Oybbnn  insisted  upon  10  guineus 

I    ■■(;  aoil  I  »  rute  foar  letters  of  the  usage  I 

I    Molted,  ItAfing  palil  seTeral  snuia  of  money  ; 

I     <4di  1  sent  to  Mr.  Hui;gias  by  Robin  tlie 

[      mr,  and  did  in  one  of  them,  of  the  Ath  of 

Qato,  mrniioD  Mr,  Aroe's  coofinemeui. 

It.  Bamn  Carter.  To  what  uurpose  wa 
tekUrrf 

imii.  II  partly  related  to  my  own  buslnesi 

■■dl  mtniiooed  that  tbe  slri>ng  loetu  kus 

'"'  ::■  <  fit  for  ii  Christian  to  be  in,  and  Mi 

,1   n  very   miserable  CO ndiiian  ;  an 

"  *iicb  a  condilion,  1  ^lehima 

;:..  ^.'Mii.  beiDfc  in  ■  mannVr  nakeil  tor 
ku  •<  ii.icrin^,  lie  bad  ripped  open  hia  bed, 
<UkJe<,l  mio  the  feathers. 

Xr  Baran  Carter,   Did  you  lake  any 
••ttt  leilrr  »l  bis  lying  in  ilie  fealliera  ? 

'  ~L  I  had  wrote  in  the  letter  almul  neeine 
Salotbe  fcutheri,  aiid  direclnl  ilie  letter  to 
Ib.Higjpaa,  al  liU  houiw  in  Bl.  Martin  Vlane, 
"i  ■«  ii  by  Robin  the  porter.    I  spoke  to 

M  Jwtice  Page.  Thiit  waa  not  material. 
Barim  Carlrr,     Did  you  ever  aee  Mr 
U  in  (be  gaol  f 

L    1   BCter  did,  but  wtlelied  an  oppor 
W«tm*iatC  him. 

**       )  Carter.      What  condition   wa' 

•  M  n  muwrnble  (ceue ;  and  1  taki 

llic  cause  of  hii  death  ;  and  that 

1*1  by  lieiii^  in  »iuch  a  condiiion. 

ku.     I  deaire  he  mav  be  asked, 

fnir  I  liAiJ  oome  into  the  Fleet  prisuo, 

N  ham  seen  nie  ? 

I  brlii*e  1  <ihuu!d. 
-itt.  D'dyiiietetaee 

^     I  ant   Ur.   Hugicins  two  or  three 

W,  u  ibe  lime  ibe  oruilionoii 

Hiumt.  1  rfetire  lie  may  be  aakei),  my 
M,  tf  ba  itKnni  My  auiwct  frtm  me  tu  the 


m 


nessf-.5ni,(S,  It  did. 

Jtoberl  Satitlclair,  the  porter,  iwi 

Atl.Gcn.  It  that  ibeman,  Robin? 

Smith.  It  la  the  man  I  scut. 

All.  Ocii.    Did  you  carry  any  lettcn 
Mr.Smilli? 

Haintclair. 
brnugbt  aiiswi 

reason  of  the  dislnnce  of  the  time,  cannot  re- 
lueniber  the  delirery  of  the  letters,  but  govs 
tbe  answers  to  Mr.  Sniiih. 

Att.  Gen.    Do  you  remember  about  what 

Sainlclair.  I  cannot  uy  about  what  time. 

Att.  Gen.  Did  you  carry  any  letters  from 
Mr.  Smith  toMr.  HagiipnBr 

Saintciair.  I  carried  aereral  letlera  lo  Mr. 
H  ufgiiis  from  Mr.  Smith,  and  always  return- 
ed an  answer  to  whom  I  dchrered  them. 

lluggim.  My  lord.  I  desire  he  mav  be  ask- 
ed, if  he  ever  delivered  a  letter  from  Air.  Smith 
turner 

Saiittelair.    I  cannot  iay    I 
Ho|{g'ins  at  his  own  house. 

T^tmat  Paine  swoi 

Alt.  Gen.  Did  you  know  Edward  Arne? 

Faille.  I  did,  and  remember  hi*  being  put 
in  the  Pleei  prison. 

Att.  Gtn.  What  itate  of  health  was  lie  iu 
when  lie  esnit  there? 

I'aittt.  He  was  in  a  good  state  of  health.  I 
was  in  company  with  him  and  raplaiu  Bat«- 
niao,  who  was  al  cards,  and  Ame  was  at  play, 
and  did  not  seem  to  he  lunatic ;  unil  ooe  James 
Bamea  came  imo  the  rnom  whdat  1  wai  in 
I'umpauy  drinking  with  tliem,  and  Arne  iras 
rloiii|c  nolhinir  disorderly,  and  Barnes  forced 
liim  into  the  strong  room,  and  I  was  then  hv. 

Att.  Gen.  WliowasBai'uesf 

Painr.  Barnes  was  a  prisoner,  and  was  made 
m  watchman  by  Gybbon,  »ho  gate  him  tbe 
liberty  of  the  (rale. 

Att.  G(R.  What  was  his  husineil? 

Paine.   He  was  a  watchmBD. 

All  Gen.  Whose  servant  (lid  you  look  upon 
taiui  in  bfi> 

Puint.  1  looked  upon  him  la  be  a  servant  of 
Mr.  UyhtHin'n. 

All.  Gen.  Did  you  ever  see  Mr.  Huggins 
there  ? 

Paine.  I  never  saw  Mr.  Hoi;gius  there,  Itut 
when  llie  priiihoouiariea  were  Uiere, 

Alt.  Gen.  What  sort  of  a  place  was  it  befora 
it  wan  niude  s-i  ? 

Puine.  It  wna  ■  stable  where  tlie  cocki 
and  heub  roosted. 

All.  GcR.  Did  you  see  it  after  it  waa  eow 
verted  into  a  strong  room,  belbre  Mr,  Arne 


387] 


8  6E0BG£  U. 


Paine.  I  cannot  s&y :  bot  there  wai  tn  ill 
smell  came  both  from  the  necessary-hooae 
and  from  the  dunghill. 

Att.  Gen.  What  condition  was  Arne  in, 
ader  lie  was  put  in  by  Barnes  ? 

Paine.  Arne  ^w  outrageous,  and  tore  his 
clothes  and  beddmgf. 

Au.  Gen.  What  condition  of  health  was 
Arne  in  ? 

Paine.  I  never  talked  to  him  but  through 
the  hole  in  the  wall. 

Au.  Gen.  How  was  he  before  he  died  7 

Paine.  J  was  discharged  before  he  died. 

Att,  Gen.  What  kind  of  alteration  was  there 
inhisToiceP 

Paine.  He  was  a  little  hoarser,  abd  I  could 
not  see  him,  but  only  as  I  talked  to  him 
through  the  hole. 

*    Att.  Gen,   Was  it  a  fit  place  to  confine  a 
prisoner  in  ? 

Paine.  It  was  not  a  fit  place  to  confine  pri- 
soners in  without  danger  of  their  lives. 

Huggint.  WaK  there  a  court  of  Inspectors 
tw  governors  of  the  Fleet  ? 

Paine.  There  was  such. 

Huggint.  Did  they  not  ballot  once  a  month  ? 

Paine,  We  once  balloted  for  steward  and  in* 
spector. 

Huggint.  Did  not  the  court  of  inspectors 
place  Arne  in  the  strong  room  f 

Paine.  Tlie  inspectors  did  not  so  much  as 
▼isit  the  strongroom. 

Huggint.  if  any  complaint  had  been  made, 
was  not  tbe  power  vested  in  the  court  of  in* 
specters  to  redress  ? 

Mr.  Just.  Page.  Mr.  Huggins,  that  is  not  a 
proper  question. 

Huggint.  My  lord,  I  desire  he  may  be  asked 
then  iifiw  long  it  was  before  Mr.  Arne  died 
that  he  left  the  prison  ? 

Paine.  1  was  dischai^ed  in  September,  about 
the  0th. 

Huggint.  The  8th  of  September,  my  lord, 
wlucb  was  about  six  weeks  before  Mr.  Arne 
died. 

Mr.  Just.  Page.  When  was  the  strong  room 
built  ? — Paine.  lo  Mr.  Gybbon*s  time. 

Uug^ins,  My  lord,  if  BIr.  Oybbon  built 
the  strou^  room,  there  is  reason  to  believe  be 
paid  for  it. 

John  Bouch  sworn. 

Att.  Gen.  Did  you  belong  to  the  Fleet  f 

Bouch.  I  did,  I  was  turnkey  there. 

Att.  Gen.  When  was  (he strong  room  built? 

Bouvh.  It  was  built  in  1735,  the  latter  end 
of  the  suuimer,  by  the  direction  of  Mr.  Huggins. 

Att.  Gen.  During  the  time  that  you  be- 
longed there,  did  not  Mr.  Huggins  come  fre- 
quently ? 

Bouch.  He  came  now  and  then,  not  jejff 
oflen. 

Att.  Gen.  When  was  Arne  put  in  the  strong 
room  ? — Bouch^  He  was  put  in  about  August, 

Atlt.  Getu  Did  you  know  htm  before  he  was 
earried  there  P 

'Bweh.  IknewhimTerywdliindnofvriair 
any  ill  offered  by  him. 


Trial  of  John  Hugghif 

Att.Gen.  Whose  order  wis  te  pn 

Bouch.  He  was  put  in  by  the  orde 
Gybbon  and  Mr.  Huggins. 

Att.  Gen.  Did  he  die  in  that  place  f 

Bouch.  He  did. 

Att.  Gen.  How  long  was  he  there? 

Bouch.  About  a  month  or  six  weeks 

Att.  Gen.  Did  you  see  Mr.  Huggi 
during  the  time  Arne  was  in  the  strou] 

Bouch.  I  cannot  say  I  did. 

Att.  Gen.  Who  was  it  orer-kx 
building  the  strong  room  ? 

Pouch.  Mr.  Huggins,  wnen  he  can 
lodge. 

Att.  Gen.  Was  he  there  when  the 
was  a- raising? 

Bouch.  1  cannot  be  certain,  but  I  n 
there  was  a  direction  of  the  Court  < 
mon  Pleas  for  BIr.  Huggins  to  ins 
gaol,  and  that  he  came  once  a  week  i 
order  from  the  Court  of  Common  Plet 

Att.  Gtn.  What  was  the  conditio 
room? 

Bouch.  The  room  was  newly  built  ai 

Att.  Gen,  Did  you  carry  any  lett< 
Huggins  relating  tu  Mr.  Arne  ? 

Bouch.  1  did  carry  a  letter  from  a 
Mr.  Arne's,  and  he  was  so  weak  thei 
could  not  speak. 

Att.  Gen.  Where  did  you  carry  it  1 

Bouch.  From  the  Fleet  prison. 

Att,  Gen,  What  was  it  about  ? 

Bouch.  It  was  about  getting  Arne  hi 
a  gentleman  gave  me  the  letter,  audd* 
to  oring  an  answer  as  to  Arue*s  havir 
berty  of  tbe  rules ;  and  I  went  my 
saw  Mr.  Hoggins,  and  gave  him  tli 
he  opened  it,  and  said  he  would  sen 
swer  by  Mr.  Hopkins. 

Att.  Gen.  When  was  this  ? 

Bouch.  It  was  in  October,  about  a 
fore  Arne  died. 

Att,  Gen.  Where  did  Arne  die  ? 

Bouch.  He  died  in  the  strong  roo 
him  two  days  before  he  died  ;  he  wa: 
if  dead  then,  and  very  weak  and  ill. 

Att.  Gen,  .What  Kind  of  a  place 
strong  room  ? 

Bouch.  It  was  a  very  sickly  place 
of  the  common  sewer  running  under  1 

Att.  Gen.  What  message  did  Mr. 
send  by  Mr.  Hopkins  as  to  the  letter '. 

Bouch.  Mr.  Huggins  sent  word  b 
Hopkins,  that  he  would  inform  Mi 
friend  what  was  to  be  done. 

Att.  Gen.  Who  was  it  built  tl 
room? 

Bouch.  One  Fry,  a  bricklayer,  to< 
tions  from  Mr.  ituggins,  at  Mr.  h 
own  house,  and  I  was  present  when 
there. 

Att.  Gen.  Who  paid  for  the  buildh 

Bouch,  {  believe  Mr.  Huggins,  for 
a  master  bricklayer,  and  I  saw  him  th 
business  afler  the  building  was  finishe 

Att,  Gen,  How  came  you  to  be  the 

Bouch,  I  went  there  Q&eD  to  geli 
Mr.  Huggiw. 


3»] 


fir  the  Murder  of  Edward  Ame. 


A.D.  17S9. 


[5S0 


Mr. 


Alt.  Gen,  When  were  yon  turnkey  ? 
houch,    I  was  not  turnkey  till  after 
Aroe's  deatb. 
Att.  Gem,  Did  yon  ice  him  in  the  strong 


fiiMcA.  I  saw  him  in  the  strong  room  twenty 

tioct,  fur  I  Has  then  endcafouring  to  get  to  be 

tnitej. 

itt  Gen.    Whom  had  ^nu  the  pkice  from  f 

Hodk.  From  Mr.Hnggins ;  and  during  the 

tef  vas  endeavouring  for  it,  I  saw  Mr.  Ame 

■tteMroogroom. 

James  Tucker  vwom. 

Atl.  Gem.  Do  yon  know  the  place  (hat  is 
oiled  the  ttmng  room  in  the  FJeet  prison  ? 

l\uker.  1  do,  and' was  employed  by  the 
WeUiyer  ind  carpenter  to  make  the  iron- 


Att.  Gem*    Whom  did  you  make  out  your 

"to? 

Tkeker,  I  made  it  out  to  Mr.  HugginSi  as 


Att.  Gen,  Did  you  ever  speak  to  any  body 
about  his  relcascnierrt  P 

Le  Vointz.  Whilst  he  was  in  this  place,  I 
met  with  Mr.  Oopkins,  and  spoke  to  him  to  ac- 
quaint Mr.  Huggins,  that  it  was  im{>ossible  but 
that  Arne  must  perish,  if  continued  in  that 

iilace ;  and  if  he  did  not  speak  to  Mr.  Huggins^ 
[  would  send  to  him  myself;  to  which  Hop- 
kins replied,  he  would ;  aud  afterwards  1  mat 
with  him,  and  asked  him,  whether  lie  bad 
spoke  f  lie  told  me  he  had  spoke  to  Mr.  Hug- 
gins,  who  said  it  was  no  busiuess  of  his. 

Mr.  Just.  Fage.  That  cannot  be  given  ib 
evidenire,  for  it  is  only  hearsay. 

Le  FoiutM.  [Stuniiing  up  again.]  I  aaw 
Mr.  Iluggius  upon  the  Bare,  with  one  Levins, 
a  QnakiTf  then  a  prisoner  in  the  bouse,  and 
Mr.  Gybbfiii,  during  the  time  Arne  was  in  the 


stmn*;  room. 


Alt.  Gen.  Who  paid  you  ? 

Tucker.  1  made  the  bill  out  in  Mr.  Hug- 
|infs  name,  and  was  paid  by  Pindar,  and  a  re* 
BSft  WIS  given  in  full  of  that  bill. 

Mra.  Eliz.  Le  Fointg  sworn. 

Jt't.  Gen.  Did  you  know  Edward  Arne  ? 
hPointt.  I  did. 

Ait.  Gen.  Do  you  remember  him  a  prisoner 
is  ike  Fleet,  and  bis  confinement  in  the  strong 


1/  PointM,  I  do ;  be  had  been  confined  two 
vrihree  fla3'S  befure  1  went  to  him  ;  the  first 
tm  I  saw  him  sittin«r  upon  a  bench,  and  the 
Bvutme  in  Win  feather-bed,  and  lie  was  cover- 
AirhKvin,  and  hi:i  l>ed  lay  on  the  floor. 

.-'/:.  (J in.  What  condition  of  health  was 
kio* 


LtPmntz.  I  nevpr  found  him  any  way  dis-     ^as  after  the   tire   happened  in  liell-Savage 


kiDp^reiK  only  disordered  by  the'col(f  and 
dut.pD<rss  of  ihe  place. 

Alt.  Gin.    Was  not  his  voice  altered  ? 

le  Pol  fit  M,  He  had  a  shivering  hoarseness 
SpOD  liiui. 

Att.  Oen.  How  long  did  he  continue  there  ? 

le  Point:.  He  continued  there  seven  weeks, 
*  ibfereaboats. 

Alt,  Gen.  What  condition  wns  the  place  in? 

Le  PointM.  It  was  building  in  July,  and  J 
Rmember  the  finishing  of  it  some  time  in  Au- 

Alt.  Gen.  W^hen  was  Mr.  Arne  put  in  ? 

le  Points.  He  was  put  in  as  soon  as  it  was 
fiii»faed. 

Att.  Ccn.  Do  you  believe  that  was  the  oc- 
caioQ  of  bis  death  ? 

If  Puir.tz.  It  was  impossible  to  be  other- 
^ ;  fur  the  huililing  was  so  very  green,  that 
S«u  might  pull  the  moriar  from  the  bricks 
*A  Tour  fingers,  and  it  was  impossible  any 
hiv  eould  be  continued  therein  for  seven  weeks 
iQQut  being  killed  by  the  dauipness  of  the 
fhoe ;  and  I  verily  believe  that  confiuemrnt 
*■  the  occMioa  of  Ame's  death. 


Serj.  Cheshire.  Which  way  did  he  come 
upon  the  Bare  ? 

Le  Pointz.  I  cannot  tell ;  there  were  then 
but  two  ways,  one  by  the  strong  room,  and  ikm 
other  through  the  house. 

Serj.  Cheshire.  Whereabouts  is  the  strong 
room? 

Le  Pointz.  The  strong  room  was  built  near 
the  Bare,  und  joins  to  the  end  of  the  house  ; 
and  I  saw  them  walkinjg;  together ;  aud  that 
he  could  not  well  come  in  or  out  niiiiout  com* 
ing  near  the  stronpf  room. 

8erj.  Cheshire.  What  did  you  think  was  the 
occasion  of  his  coming  there  ? 

Le  Pointz.  To  take  a  survey  of  the  walls, 
which  were  then  finished,  for  that  I  saw  him 
look  up  at  them. 

Serj.  Cht shire.  Did  you  know  Mr.  Iluggins? 

Lc  Pointz.    J  knew  him  very  well. 

Serj.  Cheshire.  When  wasjhisp 

Le  Pointz.  I  lake  it  tu  Ik*  some  time  in  Oc- 
tober, about  fourteen  days  before  Arne  died  :  it 


yard. 

Thomas  Levinz  was  called,  and  being  m 
Quaker,*  refused  to  take  an  oath,  and  there- 
fore cuuld  not  be  admitted  an  evidence. 

Jluiigins.  It  is  a  <rreat  w  hilc  ai(o  since  this 
matter  happened  ;  there  is  iki  notice  taken  by 
the  course  of  the  evidence  how  this  matter  has 
gone  on,  and  therefore  it  was  \>ry  difficult  to 
answer  particularly  thereto  ;  this  1  do  sideinu- 
ly  affirm,  that  during  the  t.ine  Arne  was  there, 
1  never  lieard  of  his  name,  that  he  died,  or  was 
in  the  strong  room,  till  that  I  was  iu  the  Fleet 
to  be  examined  :  that  I  never  was  seen  in  tlie 
Fleet  prison  while  Arne  was  in  the  strong 
room ;  and  that  no  one  of  the  kin^^'s  witnesses 
has  said,  that  I   used  any  hard  words  aliout 

*  *Mn  the  case  of  Bambridj^e  (postca)  the 
appellant's  counsel  called  u  (Quaker,  and  in- 
sisted that  this  is  a  ci\  il  suit,  in  w  hich  he  mig[ht 
be  a  witness.  But  the  chief  justice  said,  it 
was  to  this  purpr>se  a  eiiininal  iirucieding,  and 
therefore  he  couid  not  be  a  witness.  Strange'i 
Reports,  vol.  2,  p.  85C.''— IWicr  Edition* 


331] 


S  GEORGE  U. 


Trial  of  John  Iluggint, 


[SSi 


Mr.  Arne.^  There  was  a  suggestion  of  mj  get- 
iing  Arne  into  Bethlehem,  it  was  oo  part  of  my 
office  as  warden  of  the  Fleet,  bat  1  might  by  a 
friendly  office  use  my  interest  with  Mr.  Tay- 
lor ;  and  that  would  shew  me  more  a  humane 
man,  than  one  guilty  of  cruelty. 

That  some  of  the  prisoners^  who  were  wit- 
nesses, were  discharged  the  prison  the  7th  of 
September,  so  it  was  not  likely  that  they  should 
be  able  to  swear  as  to  Arne's  death,  who  did 
not  die  till  October. 

As  to  Gybbon  being  deputy,  the  first  evi- 
dence to  be  produced  will  oe  the  act  for  insol- 
Tent  debtors  m  1725,  to  prove  that  Gybbon  car- 
ried iu  a  list  pursuant  to  that  act ;  and  deliver- 
cm!  it  as  gaoler,  and  swore  to  it ;  and  I  must  de- 
sire, that  Mr.  Tanner  may  read  the  clause  in 
that  act  of  parliament,  where  gaolers  are  di- 
rected to  make  out  a  list  of  prisoners. 

Att,  Gen,  If  you  would  prove  Mr.  Gybbon 
warden,  you  must  prove  what  consideration  lie 
gave,  and  what  stile  he  bore. 

Mr.  Just  Page.  Did  the  commissioners  in 
that  act  take  notice  who  was  deputy-warden  or 
not  ?  Let  it  be  deputy,  or  how  it  would,  they 
took  no  notice  of  that.  1 1  would  be  no  evidence 
for  the  king. 

Huggitu.  It  will  prove  that  Gybbon  aeted. 

Mr.  Just.  Page.  We  shall  see  that  when  the 
act  of  pariiament  is  read.  I  allow  Gybbon  did 
act  in  tact. 

Att.  Gen,  If  he  has  a  mind  to  prove  Mr. 
Gybbon  deputy,  he  must  prove  it  by  his  depu- 
tation. 

Serj.  Cheshire.  It  is  too  early  to  offer  this 
before  the  deuutation  lies  before  us ;  therefore 
I  submit  it,  it  it  is  not  too  soon  to  offer  this  in 
evidence. 

Mr.  Just.  Page.  I  cannot  direct  the  prisoner 
how  he  should  proceed ;  whether  this  may  be 
of  advantage  to  him  I  cannot  find.  If  he  be 
charged  from  a  particular  fact  that  did  arise 
by  Gybbon,  why  should  not  Huggins,  by  the 
same  rule  of  reason,  justify  himself  by  any 
other  act  done  by  Gybbon  ? 

Vide  Act.]  Then  the  clause  in  the  Act  of  In- 
solvency iu  the  year  1725,  was  ordered  to  be 
read. 

Mr.  Just  Page.  I  do  not  see,  upon  reading 
of  the  act,  it  affects  any  thing  that  has  been 
said.  1  take  it  that  the  officer  acts,  and  makes 
returns,  and  the  law  does  not  say  whether  it  is 
the  warden  or  the  deputy  < warden.  Mr.  Hug- 
gins,  1  dare  to  say  you  yourself  will  own  it; 
and  the  use  that  you  would  make  of  it  is  to 
shew,  thit  he  acted  as  warden. 

Huggins.  FuUhorpe  was  discharged  the  7th 
of  September.  1  desire  Mr.  Tanner  may  pro- 
duce the  list,  and  that  it  may  be  read  to  skew 
that 

Mr.  Just  Page.  If  Fulthorpe's  evidence  was 
laid  aside,  yet  there  are  witnesses  enough  to 
prove,  that  they  saw  vou  there :  however,  I 
most  take  notice  of  wnat  Fulthorpe  said ;  he 
aid,  that  Arne  was  a  peaceable  man,  and  then 
gtre  a  defcription  of  the  room  i  ind  nid»  that 


I 


the  floor  was  covered  with  a  few  boards ;  and 
that  he  saw  the  prisoner  twice  in  the  Fleet,  and 
that  he  was  there  at  one  time,  and  k)oked  in  at 
the  door,  and  then  the  door  was  shut,  and  ht 
went  away.    This  defence  seems  but  trifiing. 

Huggins.  I  intended  it  as  to  the  credit  of  the 
witness. 

Mr.  Just.  Page.  The  man  has  sworn  ho- 
nestly, and  if  it  was  struck  out  of  the  evidenes 
it  would  not  signify ;  and  I  must  a  little  asskt 
vou,  as  no  counsel  is  allowed  but  in  cases  of 
high  treason.  You  were  going  to  shew  the  act 
of  the  deputy,  without  shewing  what  authority 
was  given  to  the  deputy.  If  yon  have  any  in- 
strument or  agreement  by  which  yoa  consti- 
tuted Gybbon  deputy,  you  must  produce  it 

Huggins,  My  lord,  1  cannot  produce  it,  be- 
cause It  is  in  the  hands  of  the  widow  GyblMNi, 
or  some  other  person ;  and  we  are  at  this  time 
in  eouity. 

Mr.  Just.  Page,  Affairs  of  this  nature  have 
always  been  done  by  indenture — as  the  aherifii 
of  London  to  their  under-sherifi*— and  then  yos 
must  have  a  counterpart. 

Huggins.  My  ku'd,  I  never  made  any  Meh 
indenture ;  I  desire  Mr.  Tanner  may  he  asked* 
who  appeared  as  warden  upon  the  Inaolvcnl 
ActP 

Tanner,  Mr.  Gybbon,  my  lord. 

Mr.  Just.  Page,  Do  you  believe  he  waa de- 
puty or  not  f 

Tanner,  I  looked  upon  Gybbon  as  a  proper 
officer. 

Mr.  Just.  Page.  Who  do  you  think  wu  war- 
den? 

Tanner.    I  cannot  say  who  was  warden. 

Mr.  Just.  Page.  I  thought  you  would  Ml 
have  equivocated.  You  are  a  good  officer,  but 
I  shall  never  eutmine  you  as  a  witness. 

John  Jeffreys^  Keeper  of  the  Compter,  swora. 

Huggins.  Mr.  Jeffreys,  pray  acquaint  the 
Court  what  agreement  was  niacie  between  Mr. 
Gybbon  and  me. 

Jeffreys.  There  was  a  writinsf  made,  and  I 
was  a  witness  to  it,  but  did  not  know  what  it 
was. 

Mr.  Just.  Page.  Mr.  Huggins,  the  questions 
that  you  ask,  you  must  firbt  explain  to  the 
Court. 

Huggins.  1  desire  Mr.  Jeffreys  may  be  ask- 
ed, if  he  was  present  at  the  agreement  ? 

Jeffreys.  I  was  present. 

Huggins.  Was  there  any  writing  signed  f 

Mr.  Just.  Page.  You  must  take  care  to  pro- 
duce the  writings  if  you  examine  to  them. 

Huegins,  1  have  sent  a  mau  for  the  reoeipl 
of  1,000/. 

Mr.  Just  Page.  1  cannot  comply  for  thi 
same  title  made  under  your  grant  to  lie  givca 
in  evidence  for  the  grantor :  it  was  a  lilie 
from  you,  and  how  you  will  do  to  prove  tbif 
by  word  of  mouth,  I  cannot  see  how  it  can  be 
done ;  for  when  a  treaty  comes  into  artichp 
and  writing,  the  treaty  by  word  of  mouth  Nil 
an  end  witnout  the  wntieg  ia  prodiiecd. 


WJ 


Jiif  the  Murder  of  Edward  Arne. 


A.  D.  1729. 


ISSi 


Huggiiu,  I  was  going  to  explain  myself, 
iid  wu  o?er-raled. 

Mr.  JnsL  Page.  Whenonce  articles  are  come 
10  be  a  conveyance,  except  it  is  to  explain  that 
csBfcyance,  and  except  it  is  to  discover  some 
firtnd  even  in  the  conveyance  when  given,  it 
CHMl  be  spoke  to. 

f]Hr.  Baron  Carter  being  gone  out  of  Court, 
■wicmned,  and  Mr.  Justice  Page  took  no- 
iv lihmi  of  what  had  passed  in  his  absence.] 

Mr.  Hoggins's  aim  is  to  shew,  that  Mr. 

Gjttoo  was  sole,  entire,  acting  warden  ;   and 

llslio  act  uf  Gybbon's  should  affect  him  ;  and 

Mibe  late  Act  of  I  nsolvency  read,  and  thought 

1i  have  read  the  schedule,  but  that  could  not  be 

md.    Mr.  Huggins  asked  who  brought  in  that 

KUdule,  and  -asked  Mr.  Tanner,  whether  Mr. 

G)kbon  brought  in  that  return  as  deputy  or 

M;  who  said  that  he  did  not  know  who  was 

Mnlen,  but  that  Gybbon  was  the  proper  offi- 

cw:  now  Huggins  carrying  this  matter  fur- 

te,  wouki  have  Gybbon  appear  to  be  his  de- 

|Mv,  ind  has  now  called  Jeffreys  to  prove  that 

dipiitBtioD.      Jeffreys  says,   that  it  was  in 

viiiBg,  and  1  could  not  allow  Jeffreys  to  c;ive 

■  criifence  what  was  in  writing.     Huggins 

■U  is  answer,  that  there  was  no  counterpart, 

■ilhat  Gybbon's  widow  had  such  appuint- 

wmL    I  submit  it  if  it  was  not  his  act  and  deed, 

if  Vr.  Gybbon  allowed  uf  it 

Htegins.  My  lord,  it  is  only  a  receipt. 

J^ryi.  My  lord,  it  was  a  receipt  for  1,000/. 
lid  no  agreement. 

fiiffMs.  Mr.  Gybbon  agreed  T\ith  me  for 
Wi.  per  annum  ;  and  liking  thobar^a>.n  made 
«4!faHt  of  1,000/.  and  this  was  all  tlie  writing 
krtnefaus,  and  in  it  declared  that  ho  was  to  pay 
^Xs'.  ptr  ann.,  on  condition  of  haviug  the  rents 
•f  ilie  house  anil  sh«.;)s  in  Westminster- ball, 
iirf  rpqiiire<l  a  deposit  of  1,000/.  and  a  parole  of 
thneynrs  may  amount  to  a  leasp  or  demise. 

Mr.  Barou  Carter,  .4t  kix  months'  end  Gyb- 
ks  desired  to  haf  e  it  renewed,  and  came  to 
the  cub«^|ueut  agreement  for  900/.  |)er  ann. 
Jv  three  years.  If  the  Court  could  see  that 
i^^reement,  whether  it  do  not  amount  to  a  lease, 
LHcre  may  be  a  demise  in  it,  but  how  far  the 
Coon  will  lay  their  commands  to  produce  it, 
seihall  not  now  di-ternii':o  ;  it  would  bo  very 
kird  to  have  it  out  of  hLs  power,  and  not  to  ad- 
Bit  him  to  give  evidence. 

Att,  Gen.  The  law  recjuires  the  best  evidence 
&u  \%  to  he  given  ;  supposinr;  that  (hat  writiiiir 
*H  lost,  he  might  he  admitted  to  cfive  evi- 
4iBce  that  it  wai*  lost.  Jf  it  was  in  ilie  hands  of 
Hy  officer  of  the  crown,  and  they  wantcd'lo  be 
tviitted  to  give  evidence  as  to  the  contents, 
■Wlber  upon  giving  evidence,  that  the  thinj;; 
VHin  bciiifiT,  and  in  the  hands  of  a  third  per- 
^  ihey  should  give  parole  evidence  as  to 
Irt. 

Mr.  Just.  Page.  Hiippose  a  man  receive  mo- 
^  by  false  tokens,  hnt  by  some  accident  it  is 
fHiato  other  hands,  and  he  uses  all  the  care 
lid  art  be  can  to  get  it,  and  pmyes  that  he  can- 
at  it,  it  would  be  hard  to  couvict  a 


man,  if  he  cannot  come  at  the  writing.  It  is 
the  same  in  cases  of  life  and  death,  by  forgery 
and  false  deeds. 

Mr.  Baron  Carter.  I  agree  your  notion  is 
right  in  cases  of  civil  actions,  for  if  he  can't 
give  such  evidence  as  the  law  gives  against  it, 
be  has  a  remedy  ateqiuty  ;  but  in  this  case, 
where  a  man  stands  indicted  for  murder,  where 
can  he  have  his  remedy  ?  I  am  sure  we  sbouhl 
be  guilty  of  murder,  if  we  insisted  on  it ;  Hug- 
gins ought  to  give  an  account  that  he  can't 
come  at  such  agreement. 

Uuggim,  Mr.  Jeffreys  says,  that  he  applied 
to  Mrs.  Gibbon,  and  Mrs.  Gybbon  told  him, 
that  It  was  m  the  hands  of  one  Wilson,  her  clerk 
in  court,  and  he  could  not  tell  whose  hands  it 
was  in. 

Jeffreys.  I  have  a  copy  of  that  writing,  which 
has  been  in  my  hands  long  before  any  contest 
happened  to  Mr.  Hugg[ins,  for  it  was  written  al 
the  same  time  the  receipt  was  given. 

Mr.  Just.  Page.  Is  it  a  true  copy  ? 

Jeffreys.  I  believe  it  to  be  a  true  copy,  and 
that  there  has  been  no  alteration  made  in  it. 

The  Copy  of  the  Writing  read And  itap* 

peared  to  be  witnessed  by  Mr.  Jeffreys,  the 
26th  of  June,  1723. 

Huggint.  Have  yon  had  any  conversation 
with  Mrs.  Gvbbon  lately  ? 

Jeffreys.  Mrs.  Gybtion  came  to  me  about 
fourteen  days  ago, 

Huggins.  Was  there  any  talk  of  any  ioch 
thing  as  a  lease  or  articles  of  agreement  P 

Jeffreys.  There  was  no  such  u  ord  mentioned 
as  a'leasc  or  articles  of  agreement. 

Huggins.  Do  you  know  of  any  articles  of 
agreement  ? 

Jeffreys.  I  don't  believe  there  were  any,  for  I 
was  very  conversant  with  Mr.  Gybbon,  but 
never  heard  him  ask  after  them. 

Huggins.  How  long  did  Gybbon  continue  in 
that  otiice  ? — J^ff'tys,  Three  years. 

Alt.  Gen.  U  hat  do  you  mean  by  that  -of- 
fice ;  did  he  continue  to  act  for  those  three 
years  ? 

Jrffreys.  He  did,  and  one  year  longer,  which 
I  applied  to  Mr.  HuGC^ins  for  him  to  do. 

Mr.  Just.  Page.  You  were  present  at  theset- 


tlin^Lj^  of  the  account  between  Mr.  Huggins  and 


present 
Mr.  Hi 
Mr.  (ivhbon:    at  the  bottom  of  the  account 
there  ure  some  items  that  have  no  sums  to 
them  :  pray  how  did  that  happen  ? 

Jrlfreys.  My  lord,  it  was  not  settled. 

Mr.  Just.  Page.  Was  any  thing  mentioned, 
who  was  to  he  at  the  charge  of  repairs  during 
the  four  years .' 

JifJ'rtK's.  Mr  Husfcfins  made  a  memoranduiQ 
at  the  bottom  ot  the  paper. 

Huggins.  1 1  M  as  settled  at  the  end  of  four 
years. 

Mr.  Just.  Pu^:e.  The  repairs  of  the  prison 
were  left  a  blank. 

Uusifiinf:.  1  answer  to  that,  my  loril,  that  it 
was  settled  at  t!ie  end  of  four  years :  Mr.  Jef- 
freys wuN  then  present.  Your  lordkhip  scems 
to  take  it  for  a  Icu^e  of  three  years. 


SS53  SGEOBGSn. 

Mr.  Just.  Fuge.  It  is  neitbtir  the  one  nor  the 
other,  either  lease  or  agreement. 

Huggint.  My  lord,  Jeffreys  ^aid  there  was 
BO  ott^  agreement. 

George  WeUanduwmn* 
Huggins,  When  did  Gjbbon  enter  upon  hb 

Wellend,  Mr.  Gybbon  entered  at  Christmas, 
1733^  and  I  was  concerned  for  Mr.  Gybbon 
before,  and  by  his  direction  acted,  and  he  al- 
ways paid  me  my  fees,  and  I  never  reeeifed 
any  thing  from  Mr.  Hoggins. 

Bugfins.  Who  bore  allexpences  relatiiig  to 
the  en^T^Wellaiid.  Mr.  Gybbon. 

mggins.  How  lonc^  did  he  act  f 

Wmand.  Mr.  Gybbon  was  in  fonr  years  and 
a  half. 

Huggins.    What  do  yon  know  abont  Ame  ? 

WeJkind.  I  was  there  then,  "and  Ame  was 
«emmitted  about  the  middle  of  May,  and  at  the 
^  latter  end  of  Senlember,  Hopkins  was  sent  into 
the  country  to  Shropshire,  and  I  acted  till  Oc- 
tober, and  I  was  requested  by  Mr.  Gybbon  to 
go  to  the  Company  of  Upholders  relating  to 
Mr.  Ame.  He  was  brought  in  May,  and  put 
at  the  Vine,  and  made  liis  escape,  and  then 
grew  disordered  in  his  senses.  Some  of  the 
prisoners  came  and  brought  a  bed  of  Mr.  How- 
ard's, and  1  saw  bim  stark  naked  ;  and  it  being 
desired,  he  was  piH  in  -ttre  strong  room  at  the 
mraeot  of  the  pritKiners. 

Muggins,  nil  at  was  done  open  yonr  appli- 
cation to  the  Companr  of  Upholders? 

Welland.  They  took  care  of  him. 

The  witness  had  a  book  in  his  hand,  which 
be  called  a  check- book. 

Huggins.  Pray  give  an  account,  whether  I 
gave  any  direction  relating  to  the  prisoners  ? 

Welland.  I  never  saw  Mr.  Huggins  there 
but  twice,  and  that  was  when  the  Prothonota- 
riea  were  there. 

Huggins.  When  had  you  that  book  deliTered 
to  you? 

Welland.  Two  days  before  Mr.  Fitch  died ; 
the  book  was  brought  into  my  hands,  which  I 
iMntinued  to  act  in  till  Mr.  Bigrave  came  in. 

Huggins.  By  the  writing  in  that  book,  1  can 

Eove  Hopkins  out  of  town.    When  was  Hop- 
ns  out  of  town? 

Mr.  Just.  Page.  I  will  call  Fulthorpe  to 
dear  up  this  matter. 

Fulthorpe  was  called  again. 

BIr.  Just.  Page.  When  was  it  you  saw  Mr. 
Hoggins  at  the  Fleet  prison  ? 

Fulthorpe.  It  was  some  time  before  I  was 
discharged.  It  was  about  a  month  bef^^re  Mr. 
Arne  died,  and  I  likewise  saw  Air.  Farrington 
at  the  same  time.  Mr.  Hopkins  was  there, 
and  then  came  in  with  Huggins. 

Mr.  Just  Page.  How  oiWu  did  you  see  Mr. 
Huifiritis  there  P 

Fulthorpe.  I  saw  him  twice  at  the  prison, 
hut  ones  at  the  strong  room. 

Mr.  JuBL  Po^e.  What  time  of  the  day  was 
It  jrott  uw  Mr.  uuggins  th«t  ? 


Trial  of  John 

)  Fulthorpe.  It  was  between  elereo  ant 
and  there  were  there  Mr.  Huggms,  M 
kins,  and  Barnes ;  and  I  saw  Mr.  1 
walkmg  upon  the  Bare,  when  Lev 
duaker  was  there,  and  I  believe  Mr. 
with  them. 

Thomas  Farrington  was  again  call 

Mr.  Juat  Page.  Who  was  at  the 
room  when  you  saw  Huggins  there? 

JVirrtR^^ofi.  There  were  Mr.  Huggii 
Jdns,  and  Barnes  there. 

Huggins.  I  beg  leave  to  observe,  t 
thorpe  was  discharged  on  the  7tb  of  $e| 
and  whether  I  may  not  be  allowed  to  i 
Welland  again,  to  know  if  Mr.  Gy  bboi 
give  all  orders,  and  to  prove  that  the  t 
usage  was  not  to  have  the  coroner  bit  a 
dies  in  mesne  process? 
_  Mr.  Just.  Page.  You  may  ask  wb 
tions  you  think  proper,  for  I  will  stay 
to>morrow  morning,  to  give  you  an  c 
nity  of  going  on  wiSiyour  defence  in  yi 
way. 

Huggins.  I  desire  then,  my  lord,  he 
aaketl,  whether  Gybbon  did  not  give  al 
relating  to  the  prisoners  ? — Welland.  I 

Huggins.  Whether  the  coroner  wa 
in  to  sit  upon  any  bodies,  but  in  executic 

Welland.  We  never  had  the  coroi 
upon  execution. 

Huggins.  Whose  servant  was  Barne 

Welland.    Mr.  Gybbon's   servant, 
Gybbon  pay  him  money. 

Huggins,  Did  you  ever  see  roe  and 
together? 

Welland.  I  don't  believe  I  ever  did. 

Huggins.  At  whose  request  was  Aro 
the  strong  room  ? 

Welland.  At  the  request  of  the  prisni 

Mr.  Just.  Page.  Name  at  whose  rec 
was  put  in.